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.  

Lessons Learned . . .

My trial got bumped. I was second on the docket, but I was almost certain the case ahead of me wouldn't make it to a trial. It did make it and as it turned out, I was fortunate that it did. The defense lawyer on the case that did go to trial is highly-regarded and watching him at work has been a bit of a reality check.

You see, I thought I was ready for trial. I had filed my motions, interviewed my witnesses, visited the scene of the alleged offense, gathered my evidence and done my research. I prepared my trial notebook and had my voir dire ready. I prepared just like I have prepared for my other trials (3 bench trials and 3 jury trials), all trials that I've won. In my mind, I was ready to go. My mindset changed when I saw this other lawyer in action.

From the moment he entered the court room, you could tell he was well-prepared. Prior to starting any motions or anything like that, he went through a list of twenty or so items he wanted to address with the judge. These weren't legal issues, just attempts at getting familiar with that particular court's procedures during trial. Many of the items on the list were things I wouldn't have thought to ask about.

Once he started arguing his Motions in Limine to the judge, you could tell he had been working on his case for much longer than I had worked on mine. One of the first issues he brought up was a question he had observed the prosecutor ask during voir dire in the previous two trials in that court. There's roughly one felony criminal trial a month in this court and that means he started observing the prosecutor two months out from his trial. This is his only case in this particular court and so it's not as if he was there on other cases. He made a concerted effort to observe the prosecutor. I've thought about doing that before, but have never actually done it.

His trial notebook looked like a tabbed-out San Antonio phone book (back when the yellow pages and white pages were combined). My trial notebook looked like a playbill compared to his. He had quite simply outworked me. I summed it up to a friend like this - I had done the work necessary to give my client a good chance at acquittal, while this lawyer had done the work necessary to give his client every chance at acquittal.

A partner at my former law firm once told me something that stuck with me. He said "You could work Monday through Friday, from eight to five, and still be a good lawyer. But if you want to be a serious, kick ass, well-respected lawyer, you have to put in the time. You have to put in the time" Those words were never truer than on Monday morning as I watched this serious, kick ass, well-respected lawyer try his case.

Taking a Break.....

Here I sit, on the eve of my first felony trial. Between my business account, trust account and money in my wallet, I may have twenty dollars to my name. My rent is now ten days late and my secretary has still not received her check for last week. My client has only paid one-tenth of the fee I quoted him and yet, I have shut down my practice for the last four or five days for him, for his trial. My key witness - the witness whose testimony I was building my entire theory of the case upon is now changing his story on the eve of trial. I am starting to think he may change it once again while he is on the stand. I started the day feeling great about the case, swore I would lose by this afternoon and now am thinking I am an idiot if I can't win this thing. In a few hours, I will probably be drafting my own entry for the BODA section of the State Bar Journal. I have my evidence together, but I can't help but feel that if I had one more week, the case would get better. One more week. That would give me time to explore those avenues of defense that are now flooding my brain. That would give me time to follow up on those seemingly innocuous witness statements that have now taken on entirely different meanings as I replay them over and over in my head. This is it. I am a criminal defense lawyer.

Can I limit my practice to criminal defense and keep the lights on?

I know the title seems ridiculous, but hear me out....

When I left my job at a large firm, it was with the idea that I was leaving to become a criminal defense attorney. After all, that is why I went to law school in the first place. The whole big law firm thing happened because, after never having made more than $8.00/hour in my life, it was hard to turn down a guaranteed six-figure salary. However, my heart was never really into the corporate practice and I was always looking forward to leaving and becoming a criminal defense attorney.

The ironic thing, however, was that when I left the firm, most attorneys I talked to were telling me that I couldn't sustain a practice limited to criminal defense. They were saying that I would have to do some family law or personal injury to stay afloat. So there I was - I had left the firm to become a criminal defense attorney and now, everyone was telling me that, while I could practice criminal defense, it would have to be as part of a general practice.

I didn't really give the comments much attention at first. I assumed that these attorneys were basically saying that if I wanted to make a lot of money I would have to expand my practice. I wasn't as concerned about making a lot of money, as I was developing as a criminal defense attorney and as such, I tended to brush off such comments. However, as I started making my forays into the courtroom, I noticed that there were quite a few prominent criminal defense attorneys handling cases in other areas of practice (e.g. divorces, PI cases, civil lawsuits, etc.). I began to believe what others had been telling me.

As a result, not too long after I got out on my own, I started taking on some civil litigation. At first, the civil stuff was the only retained work I was getting. My criminal practice was primarily limited to court appointments. Since that time, as my criminal practice has grown to occupy a majority of my time, I have given serious consideration to the idea of eliminating my civil practice. I want to do this for a couple of reasons.

For one, I am somewhat worried about taking on cases in multiple areas of the law. The one thing I did like about big firm practice is that it allowed you to specialize in one area of the law. It gives you a certain confidence to know that you are qualified to handle most issues that will come up in the area you are in. I don't know that I can keep up with all of the goings-on in criminal law and other areas of the law. I also worry that by trying to keep up with these other areas, I will be taking time from developing my criminal practice.

My other primary concern is that I've noticed that I just don't have the same motivation or drive when it comes to my civil cases. I always seem to place my civil cases at the bottom of my priority list. I worry that this lack of motivation will catch up to me eventually and one of my clients will suffer for it. I just don't feel that my civil clients get the same effort that my criminal clients get.

All that being said, I am still worried about getting rid of this part of my practice. I don't know too many attorneys in San Antonio or the surrounding area that have the luxury of maintaining a criminal defense-only practice. There are a few, but all of those I can think of are the prominent attorneys. Did they start out having to take civil cases as well? Am I jumping the gun and trying to specialize too quickly?

Advice? Suggestions?

Let's Me Get This Straight, My Kid is a Felon...?

As I've developed my criminal practice, one of the most rewarding aspects of my practice is juvenile defense. Why is it so rewarding? In my opinion, many of our courts are overzealous when it comes to juveniles. I know that the probation officers, prosecutors, and judges mean well and feel as if they are teaching a juvenile a lesson by being strict, but when kids are getting tagged as felons for tagging, the system is indeed overzealous.

If I can keep a juvenile from being labeled a felon or being put on probation over some mistake they've made, I feel like I've given that kid a second chance. I'm not saying we shouldn't hold kids responsible for their actions and I'm not saying that serious offenses don't warrant intervention and punishment from the state. My concern is that we are bringing kids into the criminal justice system for things that were previously handled within the home or within the school. I worry about the effect of getting so many kids into the system at such young ages.

Fighting at school is a good example. When I was growing up, if you got into a fight at school, you got detention (at school, not at a juvenile facility) or maybe, suspension. Now, thirteen year-old kids are taken into police custody and end up in court. As a result of their dispositions in court, many of the kids will end up on probation, with a probation officer checking in on them every so often. All of this for a fight at school.

The other problem that I have with the juvenile system is that in many of the cases that I see, it is the parents that should receive punishment, and not the kid. I've seen parents who know their kid is smoking marijuana is his room and yet, the parents do nothing. I've seen kids in court for violations of conditions of probation (curfew is a common one) and it was the parents that allowed the juvenile to violate the condition. Who gets punished? Not the parent who allowed Timmy to walk the streets at 11:00 pm with his friends. It's Timmy, for not being able to refrain from doing something his parents said was OK.

I once had a young girl (14 years-old or so) who was on probation for Possession of Marijuana and she had violated the conditions of her probation. As part of her probation, she had a curfew and a no contact order with her boyfriend. She would consistently violate both conditions. Her boyfriend was 19 and when she violated the conditions of probation, it was because this 19 year-old man would come over and take her out at all times of the night. She would sneak out of her window, act like she was staying at a friend's house, etc.

My problem with the case was - how can you punish a minor for being preyed upon by an adult? Basically, the state kept giving my client harsher and harsher punishment because she kept seeing this man. When I got her as a court appointed client and reviewed the file, I felt as if I was on crazy pills. Was I missing something? Who was the real criminal in all of this and who really deserved the punishment? My argument was that the state was essentially punishing her because she was being unduly influenced by an adult and that the state was holding her responsible for the actions of her adult boyfriend. After all, she's a minor. Can we expect her to refuse the callings of an adult who claims he loves and cares about her? My argument fell on deaf ears in court and once again, she had her probation modified.

I look back on her case and regret that I didn't do more for her. To this day, I truly believe she was a victim, not a criminal. And I failed her.

New DWI "Take Responsibility Program" in Bexar County

Even though my practice is focused primarily in smaller counties, every so often, I end up in Bexar County. As such, I was intrigued to hear about the new DWI program they are implementing down there. Bexar County is different from most of the other counties where I practice in that they don't offer pretrial diversion for a DWI first offense. I was interested to see what changes Bexar County would make in the way they handled DWIs. After looking at the particulars of the new program, I am not exactly sure that this will be a docket-clearing change.

Essentially, the program allows qualified defendants to plea to "Obstruction of Highway - Intoxication" and avoid a charge of Driving While Intoxicated. However, the deal isn't as simple as showing up in court, taking your Obstruction of Highway plea deal and going about your day.

To begin with, the defendant must plead within 30 days of the arrest (defendants with cases that are currently pending will have until May 16th to plead). Then, the defendant receives one year probation, unless the defendant's BAC is .15 or greater, in which case the probation is two years. As part of the probation, the defendant will have to have to submit to Ignition Interlock, Antabuse or SCRAM depending on whether the defendant owns a vehicle. A DWI education course is also required.

The benefits of such a deal appear to be that defendants will avoid an enhancement in the event of another intoxication offense. Another benefit that has been discussed is defendants not having to pay the $1000 DPS surcharge normally levied on DWI offenders. However, since the program is new, we still have to see whether DPS will refrain from enforcing the surcharge.

On the whole, I will probably refrain from recommending this deal to my clients until we all get a better understanding of the consequences of this new program.

Out On My Own....

After three years of being locked in my office drafting research memos and "co-authoring" articles for partners, I decided to go out on my own. After leaving the confines of a "Big Tex Firm" life (goodbye Client Entertainment budget and goodbye house I really couldn't afford), I opened up a small criminal defense practice in a small community in South Texas.

Why criminal defense? I always wanted to be a criminal defense attorney. Hell, the only reason I went to law school was so that I could have my own criminal defense practice. My father has his own practice and does some criminal defense as part of his practice. Having grown up seeing what my father did, I knew I wanted to both have my own practice and to the extent possible, do nothing but criminal defense work. To be honest with you, I really don't enjoy too many other areas of the law and that became evident to me during my practice at the firm.

Now I am out on my own and doing what I want. However, at times, in my practice I feel as if I've been granted a wish from The Monkey's Paw. The work is more interesting, the people are more interesting, but the possible consequences of my actions are so much greater. When I was at the firm, if I made a mistake, a client might lose some money, or more likely, a partner might look bad in front of a client. Now, my mistakes may result in people losing their liberty. At the same time, when I do well, I know that my work has given some client their life back for a year or two, or ten.

Anyway, I hope this blog turns into a learning experience for both me and any reader that may happen to come across it.