Honesty on Activism

George Will writes an excellent commentary about the Kelo decision from the Supreme Court yesterday that upheld the government's right to seize private property for the sole purpose of getting higher tax revenue out of it. He reminds all those conservatives who wail and gnash their teeth over "judicial activists" who invalidate decisions made by elected officials that sometimes, such as in this case, judges should invalidate the actions of elected officials who have improperly trampled on the rights of individuals. In this case, most of the so-called "activist" judges on the Court voted to give deference to democratically-elected local officials rather than to allow interference from the judiciary. Meanwhile, the judges so often praised by conservatives for their non-activism--Scalia, Rhenquist, Thomas--all wanted the federal courts to strike down the decision made by local officials. Personally, I think the Court really blew it on this one. Then again, I've always thought a little judicial activism is a good thing.

Supreme Wannabes

Slate has an interesting summary of the various possible nominees to replace Chief Justice Rhenquist if, as is widely speculated, he retires at the end of this term. Personally, I think Bush will pick Alberto Gonzalez. He certainly has the closest relationship to Gonzalez. It would also give him the opportunity to put a Hispanic on the Court. And, I think Gonzalez would not face a huge confirmation fight in the Senate, despite his relatively brutal confirmation hearings for Attorney General. I also happen to think Gonzalez would be a good pick. As a justice on the Texas Supreme Court, he was a pretty restrained moderate on an all-Republican court. He showed a healthy respect for the court's earlier precedents, even though as the court of last resort in the state, he could have voted to overturn them. And, he famously chastised more conservative judges for their "unconscionable judicial activism" expressed in their dissent where they had tried to make it much harder than the statute required for a minor girl to get an abortion without parental notification. Although I don't think Gonzalez has been that great as a lawyer for the Governor and later President, I do think he was a pretty good judge. And, after reading some of the summaries of the other candidates, he seems the least scary.

Nothing Says Romance Like Sending a Guy to Death Row

Is it ethical for a judge presiding over a death penalty case to be sleeping with the DA trying that very case? In my few years practicing criminal law, I have heard of at least three cases of judges having affairs with prosecutors trying cases in their courts. And as anyone who has ever worked in the criminal courts probably knows, these things tend to be somewhat open secrets. I don't think a single defense attorney ever asked that any of the judges involved recuse themselves, most likely for the very reason it appears the attorney in this death penalty case didn't--they are afraid of the retaliation by the judge or prosecutor on the hundreds or thousands of other cases being handled either by that judge or that prosecutor or both. As a defense attorney, you are not supposed to allow concerns about other clients to dissuade you from zealously representing any particular client. You are actually obligated to withdraw from a case if you believe that zealous representation of one client will cause you to violate a duty you owe to any other past or current client. But in reality, I'm sure it happens. But, in a death penalty case? If that defense attorney knew about an affair, I think he was obligated to ask the judge to recuse herself. His client was, after all, on trial for his life.

911 Hall of Shame

Here's the scenario: You're a 9-1-1 dispatcher. You have just received a call from a frantic woman in her car. She reports that she just saw a man in the car behind her being pulled out of his car and being assaulted. Now, she's driving, and the alleged perpetrators are chasing her, trying to get her to stop. As a dispatcher, what do you do?

A. Keep the woman on the line and send police right away.
B. Tell her, "Too bad," and hang up.
C. Instruct her to pull out her gun and shoot the bastards. This is Texas!
D. Send the police with the caveat that you think it's probably just a prank.
E. Tell her that she will have to pull over and stop like the psycho killers are requesting before you can send police because the police won't respond to a moving person.

Manslaughter Verdict in "Mississippi Burning" Case

Update: Today, the judge sentenced Killen to the maximum 60 years in prison. He gave him 20 years on each count and ordered that the sentences be served consecutively.
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Original post:

Edgar Ray Killen, the alleged ringleader of KKK members who murdered three civil rights workers in Mississippi in 1964, was convicted today of three manslaughter charges. The jury apparently rejected the more severe murder convictions sought by the State. There have been several of these years-after-the-fact murder prosecutions in recent years, and there has often been debate about whether they are good things or bad things. In my opinion, it is always a good thing when the State can rightfully punish someone who committed murder, after a fair trial. I realize that the long delay in prosecuting means that Mr. Killen must now begin a prison sentence at the age of 80, but it also means that he has been able to enjoy 41 years of freedom while the murders of the three innocent young men essentially went unpunished.

A question for prosecutors . . . seriously

I don't know if any prosecutors read this blog, but I would really like to hear their input on this issue if they do. Let's say you have a purse-snatching case involving two perpetrators. The victim in the case gave the police descriptions of both suspects. The next day, the victim sees someone in town who she believes was one of the men who stole her purse the day before. She calls the police, and they identify the individual. Later, the police prepare two photo line-ups for the victim. One includes a picture of the man she saw a day later and called police about. The other includes the picture of a suspect police developed based on her original description. The victim positively identifies both suspects. No other evidence ties either individual to the offense. Now, let's say that you receive irrefutable proof that the suspect developed by police could not have committed the offense because he was in jail at the time. The victim is informed of this, but is still confident in her identification of the man she saw the next day. If you are the prosecutor on this case, what do you do?

Flag Burning War

Is the flag-burning amendment just more of Congress's "tough on crime" approach? Personally, I have never heard anyone argue persuasively why something that symbolizes freedom should be held in higher regard than freedom itself. If it is true, as is often reported, that a large majority of Americans thinks flag-burning is reprehensible and should be criminalized, then isn't enough that those who burn American flags incur scorn, ridicule, and a general disregard for whatever ideas they are trying to promote by burning the flag? That is the core idea of the free speech clause, if I remember correctly. Bad, offensive, and otherwise revolting speech or ideas are best refuted with other speech and ideas than by imprisoning or otherwise prohibiting the offensive speech in the first place. That is the marketplace of ideas after all.

Speaking of a marketplace of ideas . . . What do you think? Post your comments here, and vote in the new poll question.

Confessed and Exonerated

Kevin Fox was recently released from jail after DNA evidence exonerated him on that he had sexually assaulted and murdered his 3-year-old daughter. The evidence against him? A confession. The Chicago Tribune has a number of articles on the case, many of which revolve around the most obvious question: What could cause someone to confess to something he didn't d0--especially something as heinous as the brutal murder of your own daughter? The fact is that some people do falsely confess. This is certainly not the first DNA exoneration in a confession case. Sometimes, a confession may be the result of police misconduct. Sometimes it is just the overwhelming of an individual's will after unrelenting interrogation. Either way, I think it's far past the time for police to start videotaping all interrogations. Only then can the jury truly appreciate what led an individual to "confess," and determine if that confession is reliable.

Fake Lawyer on the Prowl?

A Dallas County grand jury will consider whether to indict a paralegal who has allegedly been passing himself off as a lawyer to defendants and judges. His actions include telling a suspect in a capital murder case--who police didn't have enough evidence to arrest--to tell the police everything that happened (all the while the alleged fake lawyer was assuring him that he was just a witness, not a suspect), which resulted in the suspect being charged with capital murder under the law of parties. That defendant is now represented by one of my co-workers. One of my own clients indicated that the fellow was helping him to overturn his previous unjust convictions. I don't think he's been successful so far.

The Story of the Case

So, I want to give a wrap-up of my murder trial from last week. Overall, it was the most exhausting, exhilerating, challenging, interesting, stress-filled, and edifying experience I have had as a lawyer. It was my first murder trial. I sat second chair with a good friend of mine in the office. She is a fiery, pound-the-table, give-em-hell lawyer. I'm the more measured, even-keeled lawyer who was trying to think about the legal issues every step of the way. Of course, it's not really such a clean division. She's obviously thinking about the law, too, and I can have an occasional give-em-hell moment, but you get the idea. We really worked well together.

The facts were basically that the defendant and a few other guys, including the victim, spent all night in the victim's apartment drinking beer and snorting cocaine. Our client was 19 years old. In the morning, when three people were still in the apartment, our client allegedly stabbed the victim to death. Our claim was self-defense, but, unfortunately, our client did not mention that in his written, voluntary statement to the police. And, the eyewitness did not support that version either. The only reason given by anyone to the police for the stabbing was that the victim was talking trash to our client. And the only thing that pretty much everyone who was in the apartment that night agreed on was that there was a lot of drinking and drugging going on that night. The State had never made a plea bargain offer in the case.

Before trial, we moved to suppress our client's statement, but all we really had was that he was so intoxicated and sleep-deprived at the time he spoke with the detective that he couldn't knowingly and intelligently waive his Miranda rights. Not surprisingly, that didn't get us anywhere. I picked the jury, and used the time to soften them up to the use of deadly force for self-defense and sudden passion. My co-counsel first chair cross-examined most of the State's witnesses. She had personally interviewed the two main fact witnesses before trial, and both of them had given written statements to the police--but both of them managed to come up with more damning, incriminating details at trial than they mentioned in either their written statements to police or when interviewed by my colleague. She crossed them well on the inconsistencies, and got them to admit that the victim had done a bit of bragging that night about his new gun. I crossed the medical examiner which did a little to help us--by supporting our client's story that the victim had done cocaine several hours after the other witnesses said he had stopped. And, our client testified to his version of events--that right before he stabbed the victim, the victim had threatened him that he would never get out the place alive--and I thought did a pretty good job. The big problem, though, was his statement to police which did not mention that fact. The State gave a very good closing argument, although their insistence that the fact that no one ever actually saw the victim's gun meant deadly force could not have been reasonable seemed a little stubborn and boneheaded to me. If someone tells you all night they have a gun, and then threaten to kill you, I don't think you have to actually wait to see the gun before you defend yourself with deadly force. Maybe that's just me. Anyway, my co-counsel gave a great closing argument as well. But in the end, I think our client's statement to the police was simply impossible for the jurors to discount. They deliberated for a little over an hour and found our client guilty.

Next came the punishment phase, which I did most of. Texas does not have an offense of voluntary manslaughter. Instead, in the punishment phase of a murder case, the jury may be asked to decide if the defendant acted in sudden passion. The burden is on the defense to establish sudden passion by a preponderance of the evidence. If you do, then the range of punishment drops from 5-99 years or life in prison to 2-20 years in prison. The evidence can come from the guilt-innocence or punishment phase of the trial. Sudden passion is basically defined as provocation from the victim that would cause an ordinary person to have so much anger, rage, resentment, or terror that their mind is incapable of cool reflection. We mostly relied on the evidence produced at the guilt-innocence stage for sudden passion. We also put on three female relatives of our client to talk about his childhood and teen years, family problems, history of alcohol abuse, even-tempered and non-violent nature, and to generally beg the jury for mercy. It was difficult for them, but I thought they did a good job. Because our client had never been convicted of a felony, he was eligible for probation, so we called a probation officer to testify about conditions of probation--supervision, drug testing, drug treatment, community service, etc. The State called the surrogate father of the victim and his employer to talk about him and what a good person he was. Neither of them seemed bothered by the fact he was hosting an all-night party involving minors drinking (the victim's age was murky--he wasn't born here--but he was at least 25) and doing cocaine. They also called a couple officers to try to establish our client had committed a couple misdemeanors before (he hasn't been convicted of either offense). I did the closing argument on punishment which was a real challenge. The jury had such a wide range of punishment to consider that I literally felt that our client's life was in my hands. I asked the jury to consider the evidence of sudden passion, and also to consider that he was more than this one horrible act. I tried to weave together the incidents in his life told by his relatives and that he was someone's son, nephew, cousin, and grandson. My voice actually started cracking and I had to really hold it together not to cry. I really feel like I did the best I could have done for our client. We asked for probation or no more than 15 years. The State did a fine closing argument as well, but asked the jury for no less than 50 years. In the end, the jury rejected sudden passion, and gave our client 35 years. He will be eligible for parole after serving half that time.

When it was all over, I felt more tired than I have ever felt in my life. I think adrenaline had been keeping me going for the last half of the trial, and when my body realized it didn't need the adrenaline any more, I finally felt the complete exhaustion. I spent the weekend trying to rest and reflect on the experience. I really feel like we gave our client an excellent trial. We protected his legal rights. We brought out all the evidence favorable to his position and challenged all the evidence the State produced. We made our best arguments to the jury. And I think the jury did their honest best to do justice in a very difficult case.

It really was an incredible experience. I learned so much, and challenged myself like I never have before. And I really do believe that we gave our client one hell of a trial.

Governor GoodHair Screws Us Again

While I was in my murder trial (which I'll blog more about later in the day, time permitting), Governor Rick Perry aka Governor GoodHair vetoed virtually all the good criminal justice legislation from the session. Written consent for searches at traffic stops? Vetoed. Probation reform? Vetoed. I'll try to blog more specifically about all of this later, but right now, I have a pile of stuff to do that built up while I was in trial last week, and, to be honest, I'm just too damn pissed to post coherently. @#$%^&*()@#$%^&*)(*&^%$%*(*#$%^(&*!!!!!!!!!!!!! That's about all I can say right now.

Almost Done . . .

The guilt-innocence phase of my murder trial will probably finish up today. Punishment, if necessary, may go into tomorrow. I'll let you know how it all comes out, but in the meantime, all I can really say is that it has been a pleasure trying this case with one of my colleagues in the office. We were assigned to the same misdemeanor court three years ago where we worked together for about six months, and reuniting on this case has been great. There are so many wonderful attorneys--and they're great people, too--in my office. I couldn't do this job without them.

Apprendi, Blakely, and Juveniles . . . A New Twist?

One of the hottest and most interesting legal issues in the criminal justice system for the past couple years has been the post-Apprendi litigation over what issues in a criminal case must be decided by a jury. For years, many issues in the federal system and many states have been commonly decided by judges. Then, the Supreme Court handed down the Apprendi decision, and things have been changing drastically ever since. According to Apprendi, the Constitution's guarantee of a right to a jury trial means that certain facts in a criminal case must be decided by a jury, not a judge, unless the defendant waives that right. So far, this landmark ruling has led the Supreme Court to invalidate many state's death penalty schemes (where a judge made the sentencing determination) and the federal sentencing guidelines. Courts across the country are still trying to manage the fallout.

Recently, a Dallas court entered the fray in a way I haven't seen before--juvenile law. A teenager is charged with stabbing a student to death at a local middle school. Not surprisingly, the District Attorney petitioned the juvenile court to transfer the case to adult criminal court. That request was granted. His very smart attorney thought Apprendi and its progeny might have something to say about that. He filed a motion to dismiss the adult case on the grounds that the transfer to adult court violated his client's constitutional right to a jury trial. His argument was that the transfer to an adult court exposed the defendant to a higher punishment than the maximum punishment he would have faced in juvenile court, and therefore the defendant had a right to have a jury decide the issue. I'm not thoroughly versed in Texas's statutory procedures for transfer to adult court, but it is definitely doesn't provide for a jury determination. In Dallas, all the criminal court judges, save one, are elected Republicans. They tend to be very conservative. But, after doing his research on the case law, Judge Manny Alvarez ruled that the defendant's transfer to adult court did, in fact, violate the defendant's constitutional right to a jury trial, and granted the defendant's motion. The DA's office is appealing. But, I think the judge got it right. It will be interesting to see how Texas appellate courts, who have been smacked down several times in recent years by the Supreme Court, will handle the issue. Stay tuned.

Busy Busy

I started a murder trial yesterday, so blogging will be light, at least until Friday. It has been almost a year since I've been in trial which is the longest drought I've had since I've been in this job. Being back in front of a jury yesterday reminded me of one of the biggest reasons I love this job--that great paradoxical combination of nerves, exhaustion, and exhileration. Is there anything else like it?

Michael Jackson Not Guilty on All Counts

As you probably already know, Michael Jackson was found not guilty of all charges today. A huge victory for the defense, and a major defeat for the prosecution, obviously. I think the DA has only himself to blame here. He was so obsessed with convicting Jackson of child molestation that he bought into the ridiculous story being sold by the alleged victim and his family in this case, including the strangest criminal conspiracy I've ever seen alleged, and seemed blinded to the glaring weaknesses and problems with the case. Prosecutors sometimes like to say that they don't pick their victims--they come with the credibility problems they have. But, that's not true. They picked these victims when they believed them sufficiently to bring charges against Jackson based on their allegations. I'm sure there are a lot of prosecutors around the country who never would have brought this case. And, just to brag on myself, a little, I'll point you back to this earlier post where I said that it was starting to look like a defense rout.

Supremes Smack Texas Death Penalty System . . . Again

The U.S. Supreme Court reversed a death penalty conviction from Dallas today based on the State's discriminatory jury selection process. This is the the second time they have reversed the 5th Circuit's decision in the case. Maybe this time they'll get the message. This particular case is legendary in the Dallas criminal courthouse because there was actually an extensive evidentiary hearing on the issue of the DA's office racially motivated jury selection. At the evidentiary hearing, a manual from the DA's office was introduced that flat out told prosecutors to strike blacks and Jews from juries in death penalty cases. Former prosecutors testified that they had been trained with that manual. The record showed that the ADAs prosecuting the case had done everything they could to get rid of black jurors. One of their favorite techniques was to take black panel members who had said they could impose the death penalty and go through a long, detailed, grotesque description of an execution, and then ask them again if they could still impose the death penalty. Many of the panel members then said they could not. Of course, the ADAs never went through the graphic descriptions with white jurors.

CPS Going Nuts?

I have a real problem with Child Protective Services taking custody of a child away from her parents just because they haven't yet gone along with the prescribed treatment from a doctor. From what I've read and seen on the news, the parents wanted a second or third opinion before subjecting their daughter--who has already been through chemotherapy--to radiation. So, the state steps in and takes not just their daughter, but all four of their children. (I believe a judge has already ordered that their three other children be returned to them.) Who the hell do they think they are? When they couldn't find the mom and the girl, they went so far as to issue an Amber Alert for her. I'm sure all the parents of kidnapped children appreciated that important use of the system. I don't believe that parents should be able to deny their children necessary medical care. But, it seems that the state should perhaps seek to resolve whether this is incontrovertibly medically necessary treatment, as opposed to one or two doctors' opinions, before they go around issuing Amber Alerts and seizing custody of children from their parents.

Media Alert! Pretty, White Girl Missing!

Another pretty, white girl is missing. So, of course, the 24-hour news media must cover it incessantly. Is there no end to this madness?

Why "Tough on Crime" Didn't Work This Time Around

This is a good article from the Austin American-Statesman about the lack of new felonies and enhanced penalties that passed in this legislative session. Lawmakers actually realized that when you add a two dozen new felonies every two years, your prison budget might go up for years to come. Imagine that. They also were not so quick to swallow the arguments of law enforcement groups about the necessity for creating new felonies. The classic example of this was the battle to change burglary of a vehicle from a class A misdemeanor into a state jail felony. Police groups insisted in their testimony that this is a growing crime problem and that they needed it to be a felony. Lawmakers shot back, however, that while the current maximum penalty for the offense was one year in county jail, the average sentence being given to those convicted was seven days in jail. They quite reasonably questioned why they should enhance the penalty for something that law enforcement is not assessing anywhere near the maximum punishment for anyway. There is also the pesky little problem that many police forces don't even investigate vehicle burglary cases, and that the only people prosecuted are people who are essentially caught red-handed. As someone who has had her car broken into three times in the last six years, I can attest to this fact. The police have never once done anything to investigate other than take a report over the phone. Although the newspaper article doesn't mention it, it seemed to me that the real reason local law enforcement wanted to make the offense a felony even though defendants weren't getting close to the maximum sentence available now was money. If something is a misdemeanor, the county must pay to incarcerate the person for their entire sentence because the sentence is county jail time. But if something is a felony, the state will have to pay for any incarceration time, because felons serve time in the state prison system. And since legislators pay for the state prison system, they didn't really feel like doing that for more and more crimes this session. How refreshing.

I'm Baaaaaack . . . Sort Of

I'm back from vacation, but I now have to dig out from under the pile of work that's built up in my absence. (Remember the good old days, when you were a kid, and a vacation didn't mean more work?) I also have a murder trial to get ready for. So, all this means that I won't be able to post much for a bit. And right at the perfect time, with the Michael Jackson deliberations going on and approaching the end of Supreme Court term, among other things. I'll do what I can.

Argggghhhh

I'm on vacation for a week. Of course, today I got slammed with a bunch of new cases, none of which sound like they will be simple, straight-forward pleas. Help me.

See you next Thursday.

Drylabbing?

The Houston Police Department crime lab has been under a dark cloud for a couple years now. It started when problems were discovered in the DNA lab. Those problems resulted in at least two innocent people being sent to prison in sexual assault cases. Since then, incompetence and misconduct has been found in the ballistics lab, toxicology lab, and serology lab (where a forensic "scientist" got the blood type of an unknown sample incorrect--the blood type!). Now, though, comes word that in the most-used section of the lab--controlled substances--has actually completely fabricated test results to conform to police suspicions. The practice, called "drylabbing," involved the forensic "scientists" never actually performing the required lab tests, but instead completely fabricating the results. In one case, the "scientist" was supposed to test tablets that the police suspected were a date-rape drug. Instead of testing the tablets recovered from the defendant, the "scientist" tested a known sample of the date-rape drug itself, and reported the results as a test of the tablets from the defendant. The scariest part of the whole thing is that of the two lab workers involved in the "dry-labbing," one of them still works there. I'm just curious as to whether the prosecutor has been turning over to defense attorneys this information in cases where this "scientist" is currently responsible for conducting the tests. I'm guessing not, but I could be wrong.

This whole situation highlights the major problem that the state refuses to address as it relates to crime labs. And while the HPD lab has been the big headline-grabber for the last couple years, there have also been numerous problems reported at Department of Public Safety labs across the state, so this is not simply a Houston issue. This year, the legislature created some sort of Forensic Science Commission that is supposed to oversee all crime labs in the state. It sounds great, but I'm reserving judgment until I see what they actually accomplish. In the meantime, back to what I see as the major problem. Crime labs should not be a branch of law enforcement! They should not be a part of the police department. They should not be a part of DPS. This isn't like CSI where the crime lab folks are running around interviewing suspects and other nonsense. These people are supposed to be objective scientists. And when they work for the police department, that is a hell of a lot harder. In Oklahoma City, forensice "scientist" Joyce Gilchrist of the Oklahoma City PD crime lab was named "Police Officer of the Year" because of her oustanding work in putting people away. Of course, she was a complete fraud and lying through her teeth the whole time. I'm not sure about this, but I'm guessing that if she had truthfully reported scientifically accurate results that repeatedly did not implicate the police's suspect, she wouldn't have been singled out for that award.