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?"

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.  

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.

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.