You Do Realize That's It's Real Time They're Doing In There, Don't You?

There's this great scene from the movie . . . And Justice For All where the main character, played by Al Pacino, attacks his colleague for a seeming lack of sympathy for a client who has been sentenced to 3 years in custody.

Arthur - Agge did not have to go to jail! Do you understand? He did not have to go to jail!

Warren - He gets out on probation in 10 months. Listen, that's not all my fault! You don't want those penny ante bullshit cases, I was doing you a favor!

Arthur - A favor? What kind of favor?

Warren - It's nickel and dime Arthur. It's all nickle and dime.

Arthur - Don't you care, Warren? Don't you even care?

Warren - If you care so much why weren't you in the courtroom? You're god damn right I care...but not about them.

Arthur - They're people Warren, you know? They're people, they're just people.

Warren - If he's not in jail this week, he'll be in jail next week. Oh god dammit you know probations....just appeal it!

I try to remind myself of that scene before I go talk to any client about time they may be facing. I try to remind myself that this is time that they may end up doing. I try to remind myself that this is time that they will never get back in their lives. I try to remind myself that while they are doing this time, they will have loved ones who they miss and who are missing them. I try to remind myself of that scene, because I never want to be dismissive of the fact that my clients are real people and some of them may spend real time in custody.

Given the above, I get upset whenever I hear a prosecutor say "Oh, it's just (insert number) (years, months, days, . . . etc.)." Again, this is real time that someone is doing.

The reason this comes up today is because today I received a phone call from the family of a former client. I represented this client on a misdemeanor theft charge. We reached an agreement with the state whereby the case would not be filed if my client jumped through some hoops (i.e., paid restitution, affidavit of non-prosecution from victim, etc.). My client did the things he needed to do and the state agreed not to file the case. Evidently, someone dropped the ball and the state filed the case some months later. My client, who had since moved to Houston, was arrested on a failure to appear because when the state sent him his summons, he did not receive it and he did not appear.

By the time I found out what was going on (my client was in custody in Harris County and I am in South Texas), my client had already been in custody for two days. I contacted the prosecutor who had agreed not to file on the case and he promised to "take care of it." I called the next day to see what the prosecutor had done and he hadn't done a thing. I explained to him that my client was sitting in custody for no reason. The prosecutor's response was "It's just a few days in county. He's still got a good deal even if he doesn't get out for another week."

I understand that it was "just a few days in county." But in those few days, my client's family was worried sick about what was going on. In those few days, my client missed 36 hours of work and 36 hours of pay. In those few days, my client had his liberty restricted, needlessly. And this is time he will never get back.

No, You Cannot "12.44(b)" Your 2nd Degree Felony and Quit Listening to Your Cell Mate.....

Today was a very busy day in court and there weren't many lawyers around.  As such, the judge asked the few of us that were there to take as many court appointments as we could.  I ended up with four.  Three of my guys were in custody and all three, at some point, asked me if they could "12.44(b)" their cases.  12.44(b) is found in the Texas Penal Code and is as follows - 

Sec. 12.44.  REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.  (a)  A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

(b)  At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

I explained to my new clients that since they were charged with 2nd and 3rd degree offenses, they could not "12.44(b)" their cases.  No big deal.  Many clients repeat things they've heard in jail and you just have to explain the law to them if they're mistaken. 

But then I had this client who I was already representing on a Motion to Revoke and we had previously worked out an agreement by which he would spend 30 days in county jail, catch up on some fines and fees he owed as part of his felony probation, and his probation would be continued.  Not a bad deal for him considering he hadn't bothered reporting, paying fees, or doing his community service during the first eight months of his probation.  He basically absconded for eight months and would do 30 days in county as a sanction.  Since my client was going to be in county for 30 days, we arranged for his family to take care of his outstanding balance with the probation department.

Well, before they bring my client over from the jail so that I can confer with him, I run into his father in the hallway and ask him whether the family had paid off the client's balance with probation.  His father says "Well, no.  My son says he's just going to 1145 his case."  So I said, "Do you mean 12.44?" and he says "Yeah.  That's it."

When I finally get the chance to meet with my client, it's in a room with about 15 or 20 other guys who are in custody waiting to meet with their lawyers.  By this point, I'm a little upset because my client's potentially screwed up this deal we had in place.  So I ask him "Did you tell your family not to pay your balance with probation?" and he says, "Yeah, I'm just going to do that thing where I get my offense reduced to a misdemeanor." I tell him, "You are here on an MTR for a 3rd degree felony.  You cannot get that reduced to a misdemeanor."  I was frustrated because now this is the fourth time I have had someone tell me that they are just going to "12.44(b)" their case.  So acting out of frustration and the stupidity that comes along with it, I stand up and look around at all the guys waiting to talk to their attorneys and say, "I don't know who the hell all of you are listening to in here, but you can't all just 12.44(b) your cases.  Talk to your lawyers." 

Looking back, I shouldn't have done that.  I probably embarrassed my client and without a doubt, I looked like an idiot or an ass (or both).  But I'd like to think that maybe I saved at least one other lawyer the hassle and frustration of having to explain to an insistent and doubting client that this particular law doesn't apply to them.  And maybe, this other lawyer had a better day than they otherwise would have because of my frustrations and stupidity.  And if that's the case, well then, I feel better about the whole thing.

I Just Can't Make Sense Of It Right Now....

Yesterday, I had a 20 year old client get sentenced to prison for holding up a convenience store with a BB gun.  This kid is addicted to heroin and did whatever he had to do to get his next fix.  He stole from friends, family, and complete strangers.  Eventually, when his habit turned into a $100/day habit, another druggie told him that robbing convenience stores was a great way to get lots of cash fast.  So he took his little brother's BB gun and held up a store.

The troubling part of the case is that every single person who testified at sentencing said this kid was a kind, respectful, and gentle kid before he was in the grips of heroin addiction.  Everyone said it.  Our witnesses.  The state's witnesses.  Everyone.  Everyone admitted that he changed once he started taking heroin.  Everyone acknowledged that he wouldn't have committed the offense if he wasn't on heroin.  Everyone.

So what did he get?  Did he get SAFP (Substance Abuse Felony Punishment Facility)?  Did he get shock probation?  Did he get anything that would allow him to receive treatment for the drug addiction?

Not a chance.  The judge gave him 18 years out of a possible 20.  The same judge signed off on the co-defendant's deal of probation in exchange for her testimony against my client.  The co-defendant who admitted that she cased the store.  The co-defendant who drove the getaway car.  The co-defendant who admitted spending the haul from the robbery on heroin.  Probation.  Probation versus 18 years.(Bennett nails it, as usual).

I'd like to console myself by believing there is some rhyme or reason for this.  I'd like to be able to convince myself that these sentences aren't just completely arbitrary.  I'd like to convince myself that somewhere there is a rationale that explains this whole thing.  

But I can't.  Not when I've seen the woman who got drunk and killed a kid, get probation and rehab.  Not when I've seen the middle-aged guy who touches the little girl get probation and registration.  Not when I've seen the young man who fires a gun at another person get probation and anger management classes.  And especially not when I saw the co-defendant get probation and SAFP.

My client is no saint.  He is a young kid who fell into addiction and no longer cared about anything other than scoring drugs.  He no longer cared about himself.  He no longer cared about his family.  He no longer cared about anyone.  It's called addiction.  And maybe, in a few years when he gets out of prison, he can get some treatment for his addiction.  And while he's there, maybe he can sit right next to the drunk who just killed a kid in an auto accident and is getting rehab as part of his probation.

The "Practice" of Law

We're talking about practice man. We're talking about practice. We're talking about practice. - Allen Iverson

The one constant in this profession is that you frequently encounter situations that you have never seen before.  It's a double-edged sword.  You find yourself going into uncharted territory and having to rely on your training and experience (nice, I sound like a testifying  police officer) to get you through.  It can be intimidating and you can make mistakes , but the reward is that you learn how to handle that particular situation if it ever comes up again.  Plus, your response can teach you things about yourself that you may not have known before.  Did you panic?  Were you paralyzed by indecision?  Were you completely unprepared for this possibility?

When I first started practicing four years ago, I would shy away from situations that were new to me.  I was so afraid of making a mistake and hurting my client's case that I wasn't as zealous an advocate as I should have been.  As I so often do, I sought out an older attorney's advice on how to handle those situations.  This attorney is a prominent criminal defense lawyer from San Antonio and I put a lot of faith in his advice.  He told me "You are going to make mistakes.  Every lawyer does.  The good ones are the ones that learn something from those mistakes."  It seems like an obvious bit of advice, put it was paradigm-shift for me.  Instead of fearing each new experience, I started to view it as an opportunity to learn something new about the law.  

So for each hearing that I had, each motion that I filed, I did the best work that I could and knew that I couldn't prepare for every possibility (Bennett has a great post on this issue).  If something I had never seen before came up, I handled it as best I could and if I made a mistake, I took enough away so that I wouldn't make the same mistake again.

Because I have this approach and this mindset, it absolutely kills me when I find myself making the same mistakes over and over.  Let me give you an example.  The other day, I was having a sentencing hearing and I was doing well with my witness (my client) on direct.  We were hitting all of the points we wanted to hit and my client had a good presence.  I passed the witness to the state and the prosecutor started the cross.  My client did well on cross.  I should have stopped my client's testimony right there.  I had more than enough points to make my argument, but I got greedy.  I started thinking that my client was doing so well that I would really hammer some more points home on re-direct and gift wrap my case to the judge.  And that's when it started to fall apart.  I lobbed softballs at my client on redirect to counter some of what the state did on cross and my client whiffed.  Then, my client went off on a tangent that left me shaking my head and left the prosecutor looking like the cat that ate the canary.  In the end, we still got the result we had hoped for, but a great looking case became dicey because I screwed up.  I asked too many questions.  I tried to counter every point that the state made.  

What infuriates me is that I know better.  I know you are not supposed to ask "one question too many."  I know your not supposed to try to counter every point your opponent makes.  I recently saw a prosecutor do the very thing I did and I was shaking my head saying to myself  "What was he thinking when he did that redirect?".  

I am reminded of an example that I read in a book (Clinical and Trial Skills In A Nutshell?) about asking one question too many.  This defendant was on trial for assault.  The state was alleging that the defendant bit the nose off of the complainant.  The defense attorney gets the state's key eye-witness on the stand and starts his cross.  He gets the witness to admit that it was dark outside during the alleged incident.  He gets the witness to admit that it was foggy that night.  He gets the witness to admit that there weren't many streetlights around at their location.  He gets the witness to admit that the defendant had his back to him during the alleged incident.  He gets the witness to admit that he only caught the very end on the alleged incident.  Finally, at the crescendo of this great cross-examination, the defense attorney says "You didn't actually see my client bite the complainant's nose off , did you?".  And the witness looks down and says "No. No, I didn't," while shaking his head.  The defense attorney decides swing for the fences and says "So, you don't have any evidence that my client bit the nose off of the complainant, do you?", expecting the witness to be befuddled and speechless.  The witness looks up, points toward the defendant and says "You mean aside from the fact that he spit the nose out at me?"

You Can Trust Me Ma'm, I Work For The State!

Not too long ago, I was in a small South Texas county representing a guy on a DWI.  I showed up at the arraignment docket and much to my surprise, I was the only lawyer present.  There were about 15 to 20 defendants and me.  I assumed the court coordinator was going to ask me to take appointments since there was no one else there to take them.  I was wrong.  The judge takes the bench and after greeting the court-goers, say the following:

"Now you have two options in front of you.  You can try and work things out with the state today.  Or you can ask for a court-appointed lawyer.  If you ask for a court appointed lawyer, you are responsible for the fees for a court-appointed lawyer and you can no longer talk to the state on your own.  Seeing as how there's only one lawyer here today and he can't take every case, those of you asking for a court-appointed lawyer will probably have their cases continued for a month."

Not surprisingly, after such a ringing endorsement from the judge at the notion of getting a lawyer to represent their rights, everyone started taking the option of working things out with the state.  I approached the judge and told him that I would be happy to take as many cases as necessary to make sure everyone that wanted an attorney had an attorney.  The judge said "Thanks, but out here that's really not necessary.  People like to work things out with the state on their own."  

After conferring with the state on my case and getting a copy of the video, I went back into the courtroom and asked the judge to reset the case to give me time to review the state's evidence.  While I was in the court, I saw the other defendants lined up at the bench taking the plea deals they received from the state.  I was floored.

Look, I'm sure the prosecutor in this county is a nice guy.  I'm sure he means well.  However, he represents the state.  He does not represent these defendants, nor is he responsible for looking out for their best interests.  I was talking to an older civil lawyer who practices in that area about what had happened and he said "Well Ol' So and So [the prosecutor] gives those people a hell of a deal on those cases and they end up with as good a deal as they would get with a lawyer."  However, whether they receive a good offer is not the issue.  

Lawyers do more for you than get you a good offer.  A lawyer will evaluate the case to see if the the case is even viable.  For example, there may be a illegal search or a bad stop.  A lawyer will determine whether the alleged incident even meets the elements of the charged offense.  A lawyer will look at the state's evidence to see if it solid enough to hold up at trial.  A lawyer will tell you whether the case is one that needs to be tried to a jury or a judge.  In the event that you decide a plea in is your best interest, a lawyer will advise you of the consequences of that plea and may present you with options you may not have known were available.  A lawyer will advise you whether the state's offer is reasonable or whether you need to go to the judge for punishment.  A defendant without a lawyer doesn't get any of this. The state surely isn't performing such an undertaking for you.

The troubling thing is that many defendants will take anything that keeps them from going to jail, whether it's good offer or not.  I don't know how many times I get people in my office on a Class B Misdemeanor (one offense level above a traffic ticket) and when I ask them what it is they want me to do for them, their response is "Do you think you can keep me from going to jail?"  (a colleague of mine says at this point he responds "Yes, but it is going to be a lot of work and very expensive").  These are people who don't know the system and assume that they are going to jail for anything.  I have no doubt when these people meet with Mr. Prosecutor, and he offers them two years of probation and a $1,500 fine, they jump on it thinking it's a good offer.  Heck it keeps them out of jail, right?

And again, I don't know that this prosecutor is giving out such offers, but I guarantee you that he's not advising these people about the merit of the case against them.  He can't.  The case is the State of Texas versus you, the defendant.  And this man represents the State of Texas.  

C'mon, Can't This Be Handled Within The School?

I recently received a call from a parent who wanted to hire me to handle her son's juvenile case.  The young man (let's call him Dwight Schrute, as I am watching The Office right now) is being charged with criminal trespass.  Evidently, Dwight was suspended from school and the school has a policy requiring the parents of suspended students to meet with the vice-principal on the student's first day back from suspension to discuss the conditions of the student's continued enrollment.  Well, in this case, Dwight's mom (Mrs. Schrute) did not go to school with Dwight to meet the vice-principal on Dwight's first day back from suspension.  She put Dwight on the bus and he went to school like he normally does.  Dwight went through the entire school day without incident.  Just before Dwight's last class of the day, the vice-principal sees Dwight in the hallway and asks him why he's at school without his mother.  Dwight responds that his mother went to work and couldn't make it.  The vice-principal tells Dwight that he's not allowed back on campus until his mother has attended the required meeting.  The vice-principal then calls campus police and has Dwight arrested for criminal trespass.  This occurs less than one hour before the end of the school day.

Dwight now has a court date and is going to miss another day of school.  He now has a prosecutor who wants to convict him of a Class B Misdemeanor.  He now has a probation officer assigned to his case who is asking for 9 months of probation.  He now has to get a lawyer (through hire or appointment) to protect his rights.  

Can we quit putting these kids into the system for these kinds of things?!?  

InSANE-ity

Just finished an aggravated sexual assault case here in South Texas.  My client was accused of sexually assaulting a young girl.  Once again, the state had the SANE nurse testify.  SANE stands for Sexual Assault Nurse Examiner.  The SANE nurse is a tool used by the state for prosecution.  Their primary function is to gather forensic evidence to be used in the prosecution of those accused of sexual assault.  They accomplish this by performing a standard triage medical examination, taking swabs of different areas of the body and getting an account of the patient's personal "history."  This "history" is merely an account of the events leading to patient's visit to the SANE nurse (e.g., the complainant's rendition of the alleged incident).  

In our particular case, the medical examination was "normal."  "Normal" means that there was no physical evidence of sexual assault.  Now, this isn't as case-breaking as some may think.  Quite often in these types of cases, there is no physical evidence of sexual assault.  And in these cases, inevitably, the SANE nurse will testify that the lack of physical evidence is not determinative as to whether a sexual assault occurred.  In fact, the nurse always testifies that an exam revealing no physical evidence of assault is "consistent with" a sexual assault having occurred.  

Now, you can always attack the credibility of the findings and expose the reality of the results of the examination.  But, as we've heard so many times before, you can't unring the bell.  Once the jury hears that there is medical evidence that appears to support the allegation, the hill gets that much steeper.  

During our trial, the nurse testified, as expected, that the physical examination was "normal" and that this examination was "consistent with" sexual assault.  Upon questioning, the nurse testified that during her career, she has conducted some 500+ sexual assault examinations and had only seen "abnormal" results in less than a dozen cases.  I found that to be astounding.  This nurse, who regularly conducts these examinations, has seen bruising, a broken hymen, abrasions, etc. (i.e., physical evidence of assault) less than a dozen times in her career during an examinations she's conducted.  That means in approximately 98% of the cases in which she testifies (I know not every case goes to trial.  I'm just approximating.), she is giving the "no physical evidence . . . consistent with" testimony.  That scares the hell out of me.

Imagine this, you're someone who is falsely accused of sexual assault.  Throughout pretrial discussions with the prosecutor, the only offers are those that would require you to register as a sex offender.  This is unacceptable to you, because you know you are not a sex offender.  You decide to take the case to trial, because, surely, the state cannot convict you for something you didn't do (I'll pause here, so the defense attorneys can stop laughing....).  Then, during your trial, a nurse takes the stand and testifies that the medical evidence in your case is consistent with a sexual assault having occurred.  WTF?!?  I understand the purported reasons for such testimony, but every time I hear it I can't believe it.