The Matlock Blog

When did you stop beating your wife?

Domestic violence is bad.  It is.  I'm not sure you'll find anyone that condones it.  But in many respects, this is true with any criminal activity.  But like its cousin, DWI, Domestic Violence is often a politically-charged crime.  It plays well in the media.  It's one of those crimes that can be played out as a "it can happen to anyone" crime.  

Domestic violence is such a "big deal" that there is actually a misdemeanor court in Tarrant County devoted solely to handling domestic violence assaults and similar crimes.  County Criminal Court Number 5, Judge Jamie Cummings, presiding.  I love that court.  I hate that court.

I will admit that domestic violence cases are somewhat unique in the sense that, for a number of reasons, there are more recantations in a domestic violence case than any other.  Too often, the alleged victim decides that it didn't happen.  Whether it be because she realizes her boyfriend is going to jail for real, that a conviction for her husband could ruin the family, or the acknowledgment that she was really just trying to get him in trouble and realizes how big of a deal it is, there isn't a day that goes by where a domestic violence "victim" says it didn't happen.

Of course, from the defense perspective, this can be great.  I would say seventy percent of my practice is victim-less anyway, so if I can have an honest-to-goodness victim say it didn't happen, why would I complain?  Go ahead, madam prosecutor, call the "victim" to the stand.  This should be fun.  And I'm all about fun.

I have more cases set for trial in this one court than any other four courts combined.  Why?  It's not because I have more triable cases than the rest, although strangely this is a lot of it.  But rather it's that I have fewer options to me but to put the State to its burden and go to trial.  

Granted, deferred adjudication is available for domestic violence cases.  This is unlike DWIs, which go to trial for many of the same reasons.  But in recent years, domestic violence cases have become weighed down by so many collateral consequences that pleading to deferred is of no significant value.  Sure, you don't get "convicted" in the strictest sense of the term, but you still have to deal with a number of collateral consequences associated with a conviction.

Sure, I do like to try cases, but sometimes cases should be resolved some other way.  Of course every defense attorney would like to get their cases dismissed, just like every prosecutor would probably like to get a conviction for every case.  The problem is we don't start from the same place.

"We don't dismiss."  I've heard this mantra all too often associated with domestic violence cases.  The truth is, the good prosecutors who apparently have personally offended someone high up in the D.A.'s office to be assigned to the "Love Court" in the first place will dismiss cases they know to be "dogs."  I applaud them for that.  It's just knowing what your case is worth and resolving it.  They are good prosecutors.  And there is always the prosecutor who will finally dismiss a case after it has languished for almost year when they know it's a "dog" and are only holding off in hopes the defense will cave to a plea.

But it's the zealot that causes the problems.  Those prosecutors that make the argument that "it happened in front of the kids" or "it could have been a lot worse" that become the problem. 

First of all, if "it" didn't happen, as relayed to you by your "victim"  in her statement saying she only wanted to get him in trouble, then "it" didn't happen in front of the kids.  See how that works?  I think there is a freshman year logic class you can enroll in to get that.

Secondly, if you really think the case should have been a felony, why don't you, as the prosecutor, charge it as such.  There is no more ridiculous argument from a prosecutor, the person who decides how a case is filed, than to say it could/ should have been a felony.  If it's a felony, file it as such.  If not, shut up.

The problem is that all too often one of the trappings of being a misdemeanor prosecutor, believing that if it's in the police report it must be true, is exacerbated in a domestic violence case.  It almost seems with some prosecutors that they hold out no possibility for another side of the story.  It's funny, kind of.  It's also sad.

I don't really know what the source of the problem is.  I know that Court 5 is swamped with cases.  They have tried a number of things to relieve the pressure of an overloaded docket over the last several years, but it only seems to be getting worse.  

I don't know if it is an internal policy of the D.A.'s office, a directive of those "senior" felony prosecutors that oversee the misdemeanor prosecutors, or just dumb luck that causes the problems in this court.  But there has to be something.

There is a reason why prosecutors in Court 5 lose more trials (a very well-respected defense attorney told me the other day it's between 2 out of every 3 and 3 out of every 4 trials).  I wonder if it has to do with not getting value from your case?  I can't imagine the prosecutors in this court are not any good.  The ones I deal with are very good.  Of course one comes to mind that may be the exception.  But she hates me anyway.  I'll just have to be brave about that.

Granted, I am probably public enemy number one in the D.A.'s office, or at least with those in Court 5 over the last year and a half.  But it's never personal with me.  It's a job.  They think I am screwing with them because I set so many cases for trial, or that I don't negotiate with them to resolve it.  It's not.  It's valuing my cards.  My client tells me he didn't do it and there is a witness who can substantiate that.  What would I do but set it for trial?

The problem with this court seems that there are too many prosecutors being held to an unreasonable expectation by their superiors.  Those that do the day-to-day grunt work of handling these cases can value them pretty well (although there is the exception, and you know who you are).  It's just that their hands are tied.  

But what the hell do I know?

Judge Keller Blames the Victim

One thing that defense attorneys often do that most prosecutors despise is to blame the victim.  We put the victim on trial.  If we can blame the victim for the predicament our client is currently in, then perhaps we can make the argument that our client isn't truly responsible after all.  

A lot of people don't like this tactic.  In fact, the rules of evidence actually prohibit that tactic in many situations.  Prosecutors don't like having to defend their victim.  Judges get annoyed and often tell defense attorneys to "defend your client, don't sling mud at the victim."  

This tactic is just one of the many varied reasons most prosecutors, judges and common everyday people don't like defense attorneys.  Of course, as with many things, it's easy to dislike something when you don't need it.  I don't like the taste of Pepto, until I need it.  Most people don't like the criminal defense attorney, until they need one.  Don't believe me?  Just ask Court of Criminal Appeals Presiding Judge Sharon Keller.

It's been reported a few times by now about Judge Keller's response to the allegations made by the Texas State Commission on Judicial Conduct.  Mark Bennett posted a witty something here and Texas Lawyer wrote about it here.  Two things particularly interested me about this.  The first is that Judge Keller wants the appointed counsel of her choice.  (This is so rich I'll have to write about it later.)  The second is she is using a tried and true defense tactic; blame the victim.

In Judge Keller's Answer to the Commission's allegations, the judge enters a general denial in paragraph one of the answer.  (H/T to Mark Bennett for the links)  The next twelve paragraphs are admissions of various factual allegations, such as "Judge Keller is now and was on September 25, 2007 the Presiding Judge of the Texas Court of Criminal Appeals ("CCA")."  

However, the next twenty-four paragraphs fall under a section entitled "Additional Facts Omitted by the Commission."  The paragraphs detail the specifics of the Richard case that is the center of the Keller debacle.  

Judge Keller, presumably knowing the answer she filed with the Commission was public, detailed the specifics of the Richard murder.  She made a point to let everyone know "Mrs. Dixon's children returned home around 9:30 p.m. on the day of the killing to find...Mrs. Dixon dead in the bedroom."  

Also this, "Nowhere in the motion or attached 'Proposed Petition' did Richard claim that Texas' method of lethal injection was unconstitutional.  In fact, in over 20 years of litigation Richard never once made that claim until September 25, 2007."  

And this, "Indeed, Richard was not seeking on September 25, 2007 'to avoid execution.'  He merely wanted Texas not to 'include chemicals that are unnecessary to the effectuation of his death.'"

And my personal favorite, "Richard insisted on a trial but did not testify.  Had he accepted the state's offer of life in prison in exchange for a guilty plea he would not have been executed."  

You know what all of this really is?  Michael Wayne Richard was a bad guy that did a bad thing whose lawyers were lazy and in the end he had it coming.  That's it.  Judge Keller is blaming the victim.

Maybe Richard was a bad guy.  Apparently he did a bad thing.  I doubt you could call his lawyers over the "20 years of litigation" in this case anything if not diligent.  After all, they tried to file a stay after SCOTUS ruled just that morning that it would hear the Baze case.  Did he have it coming?  Seriously?

So because Richard was a murderer sentenced to die for his crimes, he shouldn't get the same opportunity to exhaust all of his remedies in court?  Apparently Judge Keller things so.  At least if that means she's off the hook.

Judge Keller is doing the very thing prosecutors, both those in the D.A.'s offices around the state and those that happen to wear black robes, hate.  Judge Keller is blaming the victim.  She's trying to deflect the blame directed at her.  She's just doing what a good defense attorney would do.

Seems like a damn good tactic now I bet, huh Judge?  But what the hell do I know?

Judging the judge

All jokes aside, sometimes judges do things that require them to be judged.  To be held to a higher standard.  To be called upon to act at a higher level than the general public.  Some, if not many, might call those times elections.  But that is another discussion for another day.  

In the interim, when it's not time to potentially throw out a judge at an election, there is another means to accomplish this goal; impeachment.

Impeachment is exactly what State Representative Lon Burnam of Fort Worth is trying to do to Court of Criminal Appeals Presiding Judge Sharon Keller.  You might recall Judge Keller refused to keep the courthouse open after 5 p.m. when it was clear the attorneys for convicted murderer Michael Wayne Richard would be seeking a last minute appeal in light of SCOTUS' decision to hear arguments in the Baze v. Rees case.  The Baze case involved the constitutionality of lethal injection, the same manner of execution Richard would suffer.

Burnam's bill, found here, calls for a "Special Committee on Impeachment to consider the impeachment of Judge Sharon Keller of the Court of Criminal Appeals for gross neglect of duty and conducting her official duties with willful disregard for human life."

As with most impeachments, should the Texas House calls for impeachment, the Texas State Senate would hold the trial. 

I hope Judge Keller's lawyers know when the clerk's office closes.

Drink. Drive. Go to jail. Really?

We have all seen the billboards around that read “Drink. Drive. Go to jail.” Mimi Coffey even put up her own billboard arguing against them. For the longest time, I just assumed this was standard scare-tactic propaganda used to frighten people away from ever drinking and driving.

I suppose, since I have actually read the Texas Penal Code and know that it doesn’t criminalize someone drinking and then driving, I thought these billboards were aimed simply at scaring the uninformed populace to change their “law-breaking” ways. If someone saw the enormous billboard and read that, maybe they would think twice about hitting the road after having that beer with their Mexican food. That’s the point, isn’t it? Well, I’m not sure it really is.

Not too long ago, I had a conversation with my father about some federal case I had where there were some complex search and seizure issues. I tried to explain to my twenty-ninth generation Texan, former rodeo cowboy, straight-talking father that the government can’t actually just walk into your house and seize everything on a hunch. To my dismay, he apparently assumed the government could.

As I began to dissect this somewhat horrifying situation, the conversation turned to DWI cases. My father quizzed me on how I defend (or at least try) various DWI cases. I explained the common fact scenarios for a DWI case that might go to trial. During the middle of the conversation, my father interrupted me to state very matter-of-factly that “If you drink and drive, you go to jail. End of story.”

Somewhere, a Texas prosecutor is smiling. It dawned on me. Those billboards are not about deterrence. Whoever came up with that slogan wasn’t thinking that the campaign was going to stop anyone from having a drink before driving. The purpose of these billboards is to contaminate the jury pool.

You see, after I wiped the drool from the sides of my mouth, I tried to explain that that little catch-phrase is not actually Texas law. I went over the definition of intoxication and explained how a typical DWI case is constructed. I even went so far as to show him a copy of a jury charge that I happened to have saved onto my laptop.

Despite all of that, he wasn’t sure. He had questions about how the definition of intoxication worked with the catch-phrase. He questioned the thinking of someone that drank before driving knowing that it was against the law. The point is, he was swayed by the billboard. He was confused by billboard because he thought for the longest time that the billboard was the law.

God help the poor defense attorney that has to deal with my father on a DWI trial. God help us all that have to deal with the billboard in trial.

Integrity is doing the right thing, even when no one is watching

In June, the Texas Court of Criminal Appeals created the Texas Criminal Justice Integrity Unit. The goal of the 13-member unit is to address the growing concern surrounding the state's criminal justice system. The unit if made up of judges, prosecutors, defense attorneys and a member of Governor Perry's office. Judge Barbara Hervey of the Court of Criminal Appeals is the chair.

One of the goals of the unit is to develop a mobile DNA lab to conduct "spot checks" on the various DNA labs around the state. Michael Bromwich, a partner in Fried Frank's New York office, has agreed to develop the protocol for this new Traveling Willbury Crime Lab.

So let me get this straight. The state needs a traveling DNA crime lab to make sure all of the other DNA labs are doing their jobs correctly? What happens when the Traveling Willbury Crime Lab rolls into town and discovers the testing is substandard? Are all of the results for that day thrown out? For the week? For the month?

Are the names of the Traveling Willburys going to be made public? I have a feeling they might well spend more time in court testifying than on the road.

State Senator Rodney Ellis of Houston Democrat fame is also a member of the TCJIU. He is seeking to address problems with eyewitness identification. You and me both. According to recent statistics, 28 of the 34 inmates to be exonerated in Texas involved "strong" eyewitness identification evidence. Whoops.

It kind of makes you feel all warm and fuzzy that we even need a criminal justice integrity unit, huh? I always thought the justice system was supposed to be the integrity unit. But what the hell do I know?

Is this bizarro world?

Imagine you are a criminal defense attorney representing a person accused of capital murder. This is no easy task. You have a lot of work to do, and it is not likely to be an easy adventure. After all, the State of Texas, in all its majesty, has determined your client should be killed for what he/ she allegedly did.

Now imagine you get a subpoena. Not as a witness. Not as anything other than being the lawyer who represents the capital murder defendant. Imagine the grand jury "investigating" the case wants to see all of your records and files on the case. Yeah, I know.

It seems this very retarded idea came to a Collin County grand jury in February of this year. McKinney criminal defense attorney Ken Gore, who represents a person accused of capital murder was served a subpoena by the Collin County grand jury. Mr. Gore quickly, and correctly, filed a motion to quash the subpoena. However, before the hearing date, the state obtained a search warrant. For the files of an attorney. As they pertained to a current client. Being investigated by the state.

Weird, huh? Almost as if you can't believe what you're reading? Like watching a Woody Allen movie? Without the alcohol?

Below is the text of the email sent by Texas Criminal Defense Lawyer's Association President Rick Hagen describing the situation and explaining the Association's decision to file an amicus brief in the case.

"As you may know, the issue here concerns the search of a lawyer’s office, which resulted in the seizure of a box of documents. On February 29, 2008, TCDLA Member Keith Gore from McKinney had his office searched pursuant to a search warrant. Before the warrant was signed, the Collin County Grand Jury had issued a grand jury subpoena for certain evidence believed to be in Gore’s possession regarding his defense of a person accused of capital murder. Gore properly filed a motion to quash the subpoena and set a hearing. Before the hearing could be held, the State obtained the search warrant.

"This is a matter of highest importance to TCDLA. Keith Gore is a highly respected lawyer and member. Gore was defending his client and the State’s ability to obtain evidence in his possession through proper legal means. The State denied Gore the opportunity to be heard at the hearing on the motion by obtaining the search warrant.

"A hearing was held today on the defendant’s motion to recuse the judge, who had heard the motion on stipulated evidence. The court was concerned that the judge issuing the search warrant knew about the hearing on the motion to quash before he signed the warrant and that the judge issuing the search warrant became a chain of custody witness because he opened a sealed box. The opening of the sealed box is disputed, the judge saying he didn’t and the police saying he did."

This is the link to the amicus brief.

If the state can come into our offices and search for evidence on our clients, what's next? But what the hell do I know?

A Broken System?

In the 1980's, the Tech Rapist terrorized women on the Texas Tech University campus in Lubbock. I was maybe eleven years old. I still vaguely remember the news accounts from KCBD in Lubbock. In January, 1985, Lubbock police went to the apartment of Timothy Brian Cole, a former Army veteran and current student at Tech. When asked to accompany police to the local station to discuss the series of rapes, he agreed because he had done nothing wrong.

In 1986, Cole was convicted in Lubbock County District Court of one of the rapes committed during the spree. He was sentenced to 25 years in prison. The conviction was based almost entirely on the eyewitness testimony of one of the victims who picked Cole's picture out of a photo array. That photo was a Polaroid picture, which was drastically different than the others in the lineup, making it stand out.

Prior to trial, Cole was offered probation in exchange for a guilty plea. He refused. During his time in prison, he was offered parole in exchange for admitting his guilt. He refused. In December, 1999, as a result of what some believe to be substandard medical care, Tim Cole died from heart complications caused by an asthmatic condition. He was 39 years old.

In 1995, another man, then serving two consecutive life sentences for other sexual assaults, confessed to the crime for which Cole was convicted. No one listened. A year ago, Jerry Johnson sent a letter to both Cole's mother and the Innocence Project of Texas confessing to the crime.

Consequently, the Innocence Project sought to have Cole's name cleared by the use of modern-day DNA testing. Although DNA was used at the time of the offense, it was considered primitive and inconclusive. In May of this year, the Lubbock County District Attorney's office tested the available DNA evidence and concluded that not only was Cole not the attacker, but that Johnson was.

The Innocence Project is seeking a court of inquiry to officially clear Cole's name. This will likely be the first posthumous exoneration of a Texas inmate through the use of DNA testing.

How to Become a Horrible Criminal Defense Attorney

Our good friend Mark Bennett over at Defending People recently posted that Federal Court is no place for the unprepared, and certainly no place to learn how to defend cases all on your own. Mark is uneasy that so many people, particularly young lawyers, are trying to gain experience in Federal Court, or worse yet, are practicing there when they simply don't have the skills to do so. Mark is concerned. I understand and I wholly agree. In the hopes that those that have no business practicing in federal court take Mark's advice and give up federal practice, I offer this post to make sure they can still pay the rent. How to be a Horrible Criminal Defense Attorney.

Generally speaking, criminal law and personal injury are the two areas that terrible attorneys seem the most willing to practice, or at least try to practice. Why? Because it is perceived to be easy money. There will always be a steady supply of criminal defendants. And with the relative ease of pleading someone guilty for $1500 for a felony, there will always be work. So, you think you want to be one of these guys that is a true Criminal Pretender? Here's how.

First, and foremost, you should probably make promises as to the outcome of the case. No, I didn't say "promises you can't keep." I just said promises. You see, any good defense attorney will promise only one thing, and that is hard work. A good defense attorney will only promise to do everything possible to zealously defend his client. The Pretender? He will make promises about getting you a sweetheart deal, or "talking to the judge", or getting your case dismissed. In fact, this last one is a good marketing area. If you really want to show the world how horrible you are at being a defense attorney, you should try something clever like making your phone number something like 800-DISMISS. That will really wow them. Oh yeah, mail a bunch of cheesy advertising material to everyone that gets arrested in your jurisdiction. That's good stuff.

Next you should consider making it perfectly clear that you know nothing about the law. It shouldn't be too difficult, especially since you don't know anything about the law. I mean, come on. You know you don't. Don't hide it. We can tell you don't. Don't hide it; flaunt it. Who needs books? If you have too many of those, you won't have room for the important stuff in your office, like your marketing materials.

Finally, avoid trials at all costs. I mean those things are difficult. As a friend of mine once remarked, "This lawyering is real hard!" So why bother with the work? Just plead your client out to the state's offer. Of course, to be really good at being horrible, you will want to do this one of two ways. Either plead out on the first setting to the initial offer, or drag your client's case out for months so that they can pay your astoundingly low fee of $1450 out as $50 per week. You might have to go to court a few extra times, but it will be good for you. That way you might actually learn where it is and what other people do there.

I hope this helps those poor souls who have been displaced by that mean Mark Bennett. But I think Mark would agree when I say this: Stick to what you know. Leave the heavy lifting to those with a spine.

Life in a Box

I recently posted that wins and losses are relative. What might be a win for one client is a loss for another. It all depends on the individual client and the individual case. So when does the spending the rest of your life in a box with no possibility of every getting out alive a win? When you're a convicted cop killer.

Last week, Stephen Lance Heard was convicted by a jury in Criminal District Court Number 3 here in Tarrant County for the killing of Fort Worth Police Officer Hank Nava. Officer Nava had been attempting execute a parole violation warrant on Mr. Heard when the shootout took place. Officer Nava died two days later from wounds inflicted by Mr. Heard.

The trial lasted over three weeks. It was the quintessential Texas Death Penalty trial. Not only were the facts troubling and the consequences enormous, but the players came to play. I talked about my quick trip to Cooperstown a couple of weeks ago when I stopped in to watch some of the trial. Defense attorneys Mark Daniel and Tim Moore did a terrific job. The prosecutors, Alan Levy, Betty Arvin and Miles Brissette were good too. But Mark and Tim were methodical. They were deliberate. They were respectful, but they were aggressive.

I was lucky enough to have been able to stop in several times and watch parts of the trial. Some of it, as you can imagine, was extremely emotional. Some of it boring. But in the end, I'm sure Mark and Tim are satisfied with the job they did.

Mr. Heard will spend the rest of his life in a prison cell with no possibility for parole because the jury agreed with Mark and Tim that the death penalty should not be imposed. Not every case is the same. Not every client is the same. I don't have a single client that would consider spending the rest of their life in prison a win. I think Mr. Heard does.

Who would you rather defend?

I received an email from a friend of mine from college asking if I had seen there is a new movie about Jacques Verges entitled Terror's Advocate. I will admit initially I had no clue who that was. But apparently you can find it on iTunes. (God, I love Apple. Have I mentioned this?) Anyway, ole' Jacques appears to have made a bit of a name for himself representing "terrorists" around the world. Of course he is French (I assume), so I can't be a huge fan.

So after I watched the trailer for the movie (by the way, probably not the best movie trailer I've seen. Seems ok, but a little bit of grandstanding by ole' Jacques), I realized my buddy had actually asked a question at the end of his email. Who would I rather defend/ or not defend:
1.) al Qaeda Islamic Terroristic held at Gitmo (That's Guantanamo Bay. I knew that one!)
2.) Nazi War Criminal
3.) Repeated Child Sex Offender
4.) Presidential Assassin
5.) Movie Star/ O.J.-type situation (of course I assumed v.1, but v.2 probably also works)
6.) American Politician accused of "War Crimes"
7.) Satan

Quite a list I thought. I wish we had had such a list for our frat parties, but I digress. I think we have to put aside the obvious that if you could successfully represent Satan in front of God, you're pretty much in Cooperstown. That brings up an interesting question. Who would I rather defend or not defend?

Well, initially I will say I don't think there is anyone on that list I would refuse to defend. So the question then becomes who would I rather defend? Well, not to make light of it, but child sex offenders are a dime a dozen, and I do that everyday anyway. So let's dispense with that. The Nazi War Criminal might be high on the list of some, but that was a generation ago. (Not to make light of the atrocities. Comparison purposes only.) That leaves the Terrorist, the Assassin, the Movie Star, and the American Politician in a War Crimes Tribunal, presumably.

So, since we're talking about The Hague (which I didn't realize until recently was an actual city I guess), I'm going to pass on that one. I'm not a big fan of Europe. I mean seriously. Really no matter where you are, it's weird. As my wife said, Russia makes Western Europe look like Vegas.

That leaves the Terrorist, the Assassin and the Movie Star. I think the O.J. deal has been beaten to death. Am I wrong? It was great in, what, 1995, but we've grown, haven't we? So that leaves the Terrorist and the Presidential Assassin.

There are a lot of people out there that don't like America. That's probably because they have only been to crazy places like New York and D.C., and haven't been able to enjoy the heaven-like experience of Texas. But nonetheless, they are serious bad guys. Then of course we have the Presidential Assassin. I have personally never been of a generation that was subjected to that. Of course we have the whole John Hinckley thing but it was a failure. (By the way, did you know Hinckley went to my alma mater Texas Tech? Super. Let's put that in the Alumni literature.)

Of those, I would chose the Presidential Assassin. Why? Well, such a trial would be the absolute "Trial of the Century." There could be no question. But that's not why I would want to defend that person. Think of the challenge. Of course, nowadays, you're betting even money on whether a given person actually likes the President. Obviously I do. It's in the contract.

Which raises an interesting issue. Would it make it a bigger deal to represent the person who allegedly shot the president you support? I think it would. It would be similar to that of Anthony Griffin, or others who represent those accused of crimes.

So the bottom line is that if I could choose to defend one person, it would be a Presidential Assassin accused of assassinating a president I supported. I want to know the responses of my four, no wait, five readers (thanks again Jenny.) Let me know. I know it's Friday, but what the hell else are you going to do?