Monday, October 24, 2005


By the way, while I was away, I rolled over 10,000 visitors to my blog! Thanks to everyone who has visited, and shared your comments. And, of course, a very special thanks to all my fellow bloggers who have sent other people my way.

Fight the Gutting of the Great Writ

For many years, the great writ of habeas corpus available in federal court to review state court convictions has proved to be an invaluable tool in achieving justice for those wrongly accused and convicted, and those victimized by blatantly unconstitutional actions by the police or prosecutors. Now, this great writ is under attack. I posted previously about what Barry Scheck had to say about Congress's proposed (and horribly titled) "Streamlined Procedures Act." Despite the concerns of Scheck and others, Congress is still moving forward with this horrible piece of legislation. Please do what you can to fight this from becoming law.

The Insanity Defense

This AP story posted on CNN explains how unusual it is to mount a successful insanity defense. They discuss the difficult it will be for the woman who is charged with murdering her three children by throwin them off the pier in San Francisco, despite her diagnosis as a schizophrenic. It is a big myth in the public that people can commit a heinous crime and just, "get off" by claiming insanity. In reality, very few cases even involve an insanity defense, and most of those cases result in convictions. I had the interesting experience of sitting second chair in an insanity case. Our client had shot, but not killed, both his parents. He suffered from schizophrenia and believed that he was in a Matrix-like computer program where he was commanded to shoot them. On the videotape of his interrogation, he kept telling the officer that everything would be reset, and that no one could feel pain except for him. The tough part in our case was that our client had no documented psychiatric history. He had a wealth of odd behavior, but no one in his family had ever taken him to see a psychiatrist. So, we had to overcome the idea that he had made up the "crazy" act to get away with his crime. In the end, though, the jury truly relied on the videotape and the reports from the many psychiatrists who treated him at the state mental hospital while he was incompetent. Of course, in our case, we also didn't have any dead victims, which makes things even harder.

Digging a Little Deeper

A few weeks ago, I was appointed to represent a young man who had been charged with robbery. In addition to the main count, the state had alleged in the indictment that my client had targeted the victim based on his race. My client was black. The complainant was Hispanic. My client allegedly approached the victim and said, "Wetback, give me your money." When the individual didn't respond, my client allegedly slapped him in the face and ran away.

When I first spoke to my client, I suspected that he was mentally retarded. We recently started a mental health unit in our office to assist with mentally ill and mentally retarded clients. I tried referring my client's case to that division, but their docket was full. Even though they couldn't take the case, one of our new caseworkers volunteered to speak with him on his next court date to provide some assistance to me. After she spoke with him, she suggested that I have him evaluated for competency. I had not thought this was necessary originally because he seemed to be able discuss the facts of his case with me, and seemed to have a basic understanding of how the legal system worked. But, based on the caseworker's recommendation, I requested that he be evaluated. The expert appointed to do the evaluation, along with the caseworker, were able to discover that, in addition to being mentally retarded, my client had also been diagnosed with paranoid schizophrenia when he was a teenager. After reviewing his records, and speaking with family members, we learned that his paranoid delusions often revolved around Hispanics and that he frequently believed they were "out to get him." This, of course, put the facts of his case in a whole new light.

Last week, when his case was set, I presented the prosecutor with the information in the competency evaluation (as I suspected, my client was competent), including his diagnosis of paranoid schizophrenia and his documented paranoid delusions about Hispanics. With the new information, the prosecutor offered to reduce the charge from a second degree felony of robbery to a state jail felony of theft from a person. He got probation, and the judge waived any fine and all probationary fees. I can't imagine that I would have gotten that kind of result if I hadn't had the thorough research on his mental retardation and mental health history. Sometimes, you have to dig a little deeper.

The Beauty of a Grand Jury

In Texas, everyone has the right to have his felony case heard by a grand jury. For those who have heard the expression, "A grand jury would indict a ham sandwich," this may not seem like a big deal. But in reality, it is. It is true that if a prosecutor really wants someone indicted, he can pretty much get it done. But it is also true that on garden variety felonies, grand juries sometimes do a great job of weeding out the crap that would result in formal charges if a mere "probable cause" finding by a judge were required. Case in point. A few weeks ago, I was appointed to represent a man arrested for aggravated assault with a deadly weapon. Apparently, he had been letting a friend stay in his apartment. One night, they had a couple ladies over and everyone was apparently drinking, but no one was intoxicated, they got into an argument. Both men ended up calling the police. My guy was arrested because his "friend" said that he had pulled a knife on him. He didn't touch him, but it is still aggravated assault to threaten someone with a knife. For some reason, the cop decided to believe the other guy over my guy, and here we are. At the examining trial, I asked the police officer what the two women said had happened. He said that one of them was very vague. Vague, okay, but what did she say? He didn't remember. Did he put her statement in his report? No. I asked him if my client had admitted to having pulled a knife or threatening the complainant in any way. He didn't remember. Since there was no mention in his report of my client making such an admission, I asked him if he would have included such an admission in his report if it had happened. He said that he didn't know. Seriously? That was actually my follow-up question, by the way. "Seriously?" This was just a ridiculous case. Maybe you could argue that the officer thought he should arrest somebody so that nothing got out of hand with these folks that night, but actually filing a second-degree felony charge? Um, no. Anyway, now it was time to decide what to do for the grand jury hearing. In our jurisdiction, although I can't walk into the grand jury room and make a presentation, I can submit documents and evidence for their consideration. I thought about writing a grand jury letter laying out why I thought the case should not be indicted. But, I couldn't really think of what to say except, "Don't indict this case because it's stupid." I decided not to submit anything in the hopes that the grand jurors would have the wisdom to see that for themselves after hearing the police report. Last week, they did. No bill. And that is the beauty of a grand jury.

Apologies Again

I think I should be back to some more regular blogging as of this week. I cannot express how busy work has been the last few weeks. It's been hell just trying to keep up with returning phone calls and e-mails, not to mention my little hobby here. For those who haven't forgotten about me, thanks!

Tuesday, October 11, 2005

Seriously Mentally Ill Languishing in County Jails

When someone is so mentally ill that he cannot rationally understand the charges against him or assist his attorney in his own defense, he is ruled incompetent to stand trial. In theory, this finding is followed by a commitment to a state mental hospital until his mental health improves to the point when he is competent to face the charges against him. Then, he is returned to jail to answer the charges. In Texas, however, we are in crisis. Our mental hospitals are apparently so full that people found incompetent are waiting months to go. Currently, inmates in Dallas County who have been found incompetent are waiting 10-12 weeks before they are transferred to a mental health facility. Many of them get worse as they languish in jail without mental health treatment. This means that it often takes them even longer to be restored to competency once they get to the hospital. This, of course, means that it takes longer for beds to open up in the hospital for new transferees. And the vicious circle continues. Many of these people were arrested for misdemeanor charges for which, if they were not mentally ill, they would normally be sentenced to a month or less in jail. Something needs to be done. Now.

Overzealous Prosecutor Charges Bus Driver with Murder

Not content with putting more people on death row than any other county, the Harris County DA has charged a bus driver who was involved in an unfortunate bus-pedestrian accident that took the life of a girl on her way to school with murder. Criminal homicide charges of any level for traffic accidents that don't involve drugs or alcohol, reckless speeding, or running of red lights are an outrage. But murder? This is ridiculous. Sometimes a tragic accident is just a tragic accident. No purpose whatsoever is served by charging a driver in such circumstances with murder.