Tuesday, May 31, 2005

No Pressure!

This title of an article on the Michael Jackson trial cracked me up:

Closing Arguments Key to Victory in Jackson Trial

I have no beef with the experts consulted in the case. It just reminded me of something some of us do to mess with attorneys' heads around here. At the end of a long, grueling trial, right before closing arguments, we'll tell the lawyer, "This whole case comes down to your closing argument." Are we evil or what?

Deep Throat Revealed?

Update: Woodward, Bernstein, and Ben Bradlee have confirmed that Mark Felt is Deep Throat. He was such a leading contender among the educated guessers, it's almost anti-climactic.
Original post:

I usually don't post about politics, but this story is huge. Former FBI official Mark Felt has apparently told Vanity Fair that he was Deep Throat. The weird thing is that Carl Bernstein released a statement neither confirming nor denying the report, but sticking to the old line about promising not to reveal the source until he died. Is it just me or does that make it sound like Felt isn't Deep Throat after all? I always heard Woodward say that the promise was not to reveal it until the source died or he relieved them of the promise of confidentiality. If Felt is telling Vanity Fair he is Deep Throat, then why wouldn't Woodward and Bernstein confirm it? Some might say that if he's lying about it, why wouldn't Woodward and Bernstein loudly deny his claim, but I think the two of them have tried not to publicly deny any individual as having been the source for fear that they would reveal the actual source by eliminating too many people. Hmmmmmm. Until Woodward and Bernstein say on the record that Felt is Deep Throat, I'm not buying it.

9 Zip

No big surprise, but the Supreme Court today reversed the obstruction of justice conviction against Arthur Andersen related to its actions in the Enron matter. Bad jury instructions. From everything I read, this was pretty much a no-brainer (except to the superior legal minds on the 5th Circuit, apparently), but I wonder how often a criminal conviction is reversed 9-0 by the Supremes. Anyone know when the last time was?

And if anyone ever asks you to name a case where the Supreme Court unanimously ruled in favor of a witch and a Satanist, you can cite this one. And these weren't just any old witch and Satanist--they were prison inmates, too!

Jail or Black Hole? Hard to Tell

The Dallas County jail has been plagued by problems since the county began using a new computer system to keep track of inmates. Numerous inmates have been held past their release dates. These include people who pled out and were held past the end of their sentence, people whose cases were dismissed or no-billed by the grand jury, people who posted bond, and people who were arrested and never charged. The county commissioner responsible for the new system, however, maintains there have only been minor problems, and is not inclined to apologize to any of those wrongly incarcerated. I'm guessing if he were wrongfully held in the jail for months, lost his job, and was evicted from his housing, he wouldn't think these were minor problems.

Legal News

Why can't the media report on legal stories with some modicum of understanding? To me, it shows an utter laziness about getting facts correct. It also continues to confuse the public about legal issues. I'm a bit of a nitpicker about this, but it drives me crazy. Just this morning, I read an article on CNN (the most "trusted" name in news) about Christian Slater being arrested for grabbing a woman's ass on a NYC street. The headline says Slater was arrested on "sexual harassment" charges. Except, you know, that "sexual harassment" is not a crime. The article goes on to explain that he was charged with "sexual abuse," which actually is a crime. This is just one example. Back in my days as an antitrust lawyer, I remember reading a headline about the Microsoft case that said, "Microsoft Found Guilty of Being a Monopoly." Not bad, except that it was a civil trial where no one is ever found guilty of anything. Also, it is not against the law to be a monopoly. So, according to the headline, Microsoft was found guilty in a civil trial of something that isn't even a crime. And how many times have you read about someone arrested and charged with a slew of misdemeanor charges arising out of one incident-- say DWI, marijuana, driving with a suspended license, disorderly conduct--where each of the charges has a maximum sentence of six months or a year in jail, and the report says the person could get up to four years in jail? No they couldn't. Not unless they are the worst criminal in the history of the world, get the maximum on each charge, and have the judge order that all sentences run consecutively. They do this especially in federal cases when some white-collar criminal is charged with 30 some counts in a fraud case. They'll report that he's facing 150 years in prison. No, he's not--again with the running the sentences consecutively. If there is a single federal white-collar case in the last 50 years where someone got anywhere close to that amount, I'll eat my hat. I feel like I'm sound like my mom--a nurse--who used to complain about how the coma patients on a soap opera I was watching were on a respirator that hospitals never use anymore, or how some character looked too good for someone who just had open heart surgery. But, we all expect dramatic license to be taken on fictional entertainment programming. It would be nice, though, if the reporters who are supposed to be delivering the facts could manage to get their's straight. Is that so much to ask?

Friday, May 27, 2005

As If This Job Isn't Tough Enough

A jury in Los Angeles has ordered the Los Angeles County Public Defender's Office to pay damages to a man who was shot and paralyzed by police officers involved in the infamous Rampart police corruption scandal. The man was then framed by the officers, and convicted of shooting at them. I did not hear any of the evidence in the case, although I followed news coverage of the scandal when it was unfolding a few years ago. But, what this jury did is outrageous. I'm not saying it was wrong for the jury to find that the attorney or the office was negligent in his case. We are professionals and are subject to malpractice claims (except for prosecutors, who have absolute immunity, but that's another argument for another day). But, the jury also had to apportion responsibility for the man's damages, and concluded that of all the actors--including the police who actually shot the man, planted the gun, filed the false reports, and perjured themselves at his trial--the Public Defender's Office was 100% responsible. That is absolutely ridiculous.

Thursday, May 26, 2005

Quick Updates

I'm swamped! Wouldn't you know it that when I get buried under work, news breaks left and right? Here's a quick rundown:

1) The written consent bill has passed both houses and will become law as long as the governor signs it. This is a huge victory for civil liberties!

2) The massive probation reform package has passed and will become law as long as the governor signs it. I'm in favor of a lot of the changes, but just found out that the overhaul will prohibit juries from granting probation on murder cases. I've never heard that talked about as part of this bill, so I'm guessing it was a recent amendment. I don't like it because the cases where a jury typically gives such a sentence are ones where it is truly deserved--imperfect self defense type cases. This is Texas after all. It's not like juries are inclined to put cold-blooded killers out on the streets every day. If there is any hope of that provision getting killed in the conference committee (and I'm not sure if there is even going to be a conference committee), I hope it does. That said, I wouldn't want to see the entire probation overhaul shot down just to save jury probation in murder cases. So, if it remains in the final bill, I still hope the governor has the sense to sign it.

3) Slate considers the hypocrisy of George W. Bush's staunch opposition to stem cell research and strong support of the death penalty. I don't think the two positions are necessarily inconsistent, but I do think Bush's particular statements on the issues definitely are. Update: Check out this excellent post from a Slate reader and the ensuing discussion.

4) The Michael Jackson trial is wrapping up. The defense rested after calling Chris Tucker who painted the entire family as a bunch of cons--even calling the accuser himself "cunning." I've been in this business long enough to know there's no such thing as a sure thing when it comes to a jury trial, but I am predicting an acquittal here. The entire theory of the case was incredible to begin with, and the credibility of all the key prosecution witnesses has been thoroughly demolished. We'll know in a week or so.

5) Seth starts a discussion that Alaskablawg picks up and runs with about criminal defense attorneys using "my momma didn't love me" as a defense. Both posts are excellent reads.

Tuesday, May 24, 2005

Pop Culture Tuesday

Because I just can't wait until Friday this week . . .

*Tom Cruise has gone nuts!

*Time Magazine says these are the 100 greatest movies of all time. My three favorite movies--Star Wars, Casablanca, and E.T.--are on the list, but there are some omissions others will no doubt quibble with. No Gone with the Wind or Wizard of Oz or--for shame!--To Kill a Mockingbird.

*Freakonomics is freaky--and pretty cool, too.

*Don't let your life go by without reading at least one of Sarah Vowell's books.

*I'm condemned to the Sixth Level of Hell. How about you?

The Dante's Inferno Test has banished you to the Sixth Level of Hell - The City of Dis!
Here is how you matched up against all the levels:

Purgatory (Repenting Believers)Very Low
Level 1 - Limbo (Virtuous Non-Believers)Very High
Level 2 (Lustful)High
Level 3 (Gluttonous)High
Level 4 (Prodigal and Avaricious)Very Low
Level 5 (Wrathful and Gloomy)Moderate
Level 6 - The City of Dis (Heretics)Very High
Level 7 (Violent)Moderate
Level 8- the Malebolge (Fraudulent, Malicious, Panderers)Moderate
Level 9 - Cocytus (Treacherous)Low

Take the Dante's Divine Comedy Inferno Test

Life Without Parole Passes House!

The Texas House has passed its version of the LWOP bill in capital cases. There are a couple of discrepancies between the House and Senate versions which will have to be worked out in committee, and then, on to the Governor for his signature. It's looking like this common-sense, long-awaited measure may finally be enacted. It didn't happen without quite a debate on the House floor. Here is just a sample of an argument between Reps. Terry Keel (a former prosecutor), Pat Haggerty (who appears to be shilling for Harris County DA Chuck Rosenthal), and Peggy Hamrick (who is from Houston, Rosenthal's stomping grounds):

"You would be putting loaded guns in prison" if the measure passes, Haggerty insisted at one point during the House debate.

"You have loaded guns in there now," Keel shot back.

"It's ridiculous," Haggerty answered.

"It may be ridiculous to you, but it's not to others," Keel said.

Rep. Peggy Hamric, R-Houston, said that under current law, most capital murderers who receive a sentence of life die in prison. The proposed change in the law, she added, will change little. "So why are we doing it?," she asked.

"Because our constituents overwhelmingly want it," Keel said, a reference to public opinion polls that have shown Texans favor a life-without-parole statute.
Sounds good to me.

New Motions to Consider

Does anyone's local court rules allow them to file these motions?

Innocent and Doing Life?

Update: Apparently, I wasn't the only one who felt sick to her stomach after reading the LAT article. So did one of the jurors who convicted him. She and seven other jurors said they would not have voted to convict if they had known about the evidence discussed in the article.
Original post:

The Los Angeles Times has a very long and well-documented piece about Bruce Lisker who is serving a life sentence for the murder of his mother. Recent forensic evidence, information about an alternate suspect, and renewed doubts about jailhouse snitches involved in the case have caused even the retired prosecutor who tried the case to seriously doubt Mr. Lisker's guilt.

I'm curious how other defense lawyers feel about cases of the wrongly convicted. On one hand, I am obsessively drawn to them. On the other hand, it often makes me so sick to my stomach to read or watch stories about them that I will avoid them altogether. This one definitely made my stomach hurt.

Mommie Dearest

What kind of person would take nude photos of her own 13-year-old daughter and send them to a man over the internet so he could sell them? The same one who would then allow the man to be alone with the very same daughter in her home! When she was told the man had raped her daughter, she was so "shocked! shocked!" that she held the man at knifepoint until police arrived. The man, for his part, says he doesn't know what happened--only that he woke up and the naked girl was on top of him. I hate it when that happens. At least we know nothing like this could happen at Six Flags!

Six Flags to be Sex Offender Free?

Blonde Justice has a great post about Six Flags's consideration of a new policy "banning" sex offenders from their amusement parks. In theory, I have no problem with the policy. It is a private establishment that has the right to refuse service to whomever it wants as long as it's not discriminating based on race, religion, etc. But, Blondie is right that, practically speaking, they just can't do it. I can't imagine they are seriously going to run every person who shows up to buy a ticket through the sex offender database. And, of course, the policy does absolutely nothing to the sex offenders who have never been convicted or have never registered. I agree with her that this really seems to be all about the publicity. I think it might actually backfire on them, though. I can imagine a parent of a child who was molested in the park suing them and alleging that they had relied on Six Flags's warranty that no convicted sex offenders were allowed in the park.

Monday, May 23, 2005

Written Consent Bill Still on Track

With the legislative session winding down, I was very happy to hear from Grits for Breakfast that the the bill requiring written consent for traffic stop searches has made it onto the calendar in the House for a vote. It has already passed the Senate. This is such a great bill, it still feels almost too good to be true, so I'm not celebrating just yet. It still must pass the House and get signed by the Governor.

Poet-Lawyer Speaks the Truth

Check out this great new blog by a lawyer-poet. He's already got some fantastic truth-telling posts about the criminal justice system. Thanks to Skelly for discovering it.

Saturday, May 21, 2005

Life Without Parole on Life Support . . . Again

Update: It looks like the hold has been taken off the bill because it is now scheduled for debate on the House floor. Thank goodness!
Original post:

Leave it to Harris County DA Chuck Rosenthal to screw up the new life without parole bill. As I've discussed here before, Texas currently does not have a sentence of life without parole. For a capital case, the only two options are death or life with parole. Many people believe that juries are more likely to sentence someone to death if they fear they could one day be released on parole. And that's exactly why death-loving DAs like Rosenthal and his predecessor Johnny Holmes (Harris County sends the most people to death row in the state) have opposed it for years. This legislative session, it looked like common sense was finally going to prevail when the Senate passed a LWOP bill. The original bill which would have given juries three sentencing options--death, life without parole, or life with parole--was held up in the Senate, even though a majority there supported it. So, a compromise was worked out which would replace life with parole in capital cases with life without parole. That bill passed the Senate. Now, despite the fact that the bill likely has enough votes to pass in the House, someone has put a hold on it. And who is most likely to blame for the hold? Chuck Rosenthal, of course! Rosenthal claims he opposes life without parole because it makes it harder to control people in prison when they have no hope of making parole. Of course, this is just his opinion, based on no actual studies or research that show that in the 48 states that have life without parole, this is a problem. And I haven't heard the prison guards lobbying against this bill, and you'd think they would if they really thought it would cause problems for them with inmates. Rosenthal also argues that fewer people charged with capital murder will take a plea bargain for a life sentence if they have no hope of parole. That is probably true, but the solution to that is to reduce the charge to non-capital murder and give them life with parole. Granted, the person will be eligible for parole in 30 years (the amount of time you must serve on a life sentence before being parole eligible) instead of 40 years (the amount of time you must serve on a life sentence in a capital case life sentence before eligibility), but if you're really concerned about giving them the hope of parole, I don't think there's a huge difference between 30 and 40. The truth is that Chuck Rosenthal doesn't give a damn about controlling people in prison, and he knows the plea bargain issue is not even a real issue. He just doesn't want jurors to have the option of life with parole because it makes them less willing to sentence to death. Plain and simple. A super-majority of Texans support giving juries the option of life without parole in capital cases. It's time the state legislature and the governor (who could still veto the bill, even if it passes the House) stopped letting one bully DA make all the decisions when it comes to the death penalty in this state.

Friday, May 20, 2005

Prosecutors Choose Science Over Confession

Prosecutors in Indiana have dropped charges against a man who had confessed to murdering a 10-year-old girl after forensic evidence pointed to another perpetrator. I have to give credit here to the prosecutors for following through on the forensic investigation and for ultimately charging the person who is more likely responsible. Some prosecutors can't admit they made a mistake, but it's good to see that these prosecutors chose justice--both for the wrongly charged individual and for the victim--over saving face. I am curious, though, as to what led up to the original defendant's confession. Many people--especially jurors--don't believe people confess to things they didn't do, but it does happen. Police misconduct and extremely coercive interrogations are only some of the many reasons it happens.

Not a Nancy Fan

Peter Hartlaub of The San Francisco Chronicle is not a Nancy Grace fan. Join the club, Peter! In his shredding criticism of Nancy, Hartlaub says that "It's only a matter of time before her decision to choose heroes and villains before the story has unfolded ends badly, the way it did for journalists who piled on exonerated Olympic bombing suspect Richard Jewell." I've got two words for Peter--Richard Ricci. The man died of a brain aneurysm while he sat in prison suspected of kidnapping Elizabeth Smart. Nancy had him tried, convicted, and executed on Larry King Live even though he was never charged. I can't imagine it will be too long before Nancy gives the old Ricci treatment to someone who lives, and who, hopefully, has the balls to sue her.

John Whitmire, My Hero

I cannot even begin to tell you how proud I am of State Sen. John Whitmire. He has been kicking butt this legislative session as Chairman of the Senate Criminal Justice Committee. He's helped pass bills requiring written consent for searches at traffic stops. He's blocked a ton of bills attempting to enhance the punishments for everything from burglary of a vehicle to burglary of a coin-operated machine. And, now, he's fought back a last-minute attempt by Governor Perry to decimate a major overhaul of the probation system. According to Perry's press secretary, his modified version of the pending legislation would allow us to "have a bill that improves the criminal justice system and can also be supported by prosecutors." Because god forbid you should pass a bill merely for improving the criminal justice system--it must also be supported by prosecutors! Keep up the good work, Senator!

Pop Culture Friday!

A little break from the law . . .

*Television Without Pity is the best website in the world!

*Am I playing the "gender card" by wondering if Donald Trump is a sexist for offering the first female winner of The Apprentice a choice between running the Miss Universe pageant or renovating his house in Palm Beach?

*Do you have any idea how painful it is to watch one of your former beloved players kick your ass in the playoffs?

*Unlike these people, I have not skipped work to see the new Star Wars movie. I plan to see it this weekend. I have, however, seen the original Star Wars over 100 times. When I was a kid, my brother and I (who never agreed about anything) used to sometimes spend our Sundays watching our tape of Star Wars three times in one day. Does this make me a freak?

Reading the Local Paper

Am I the only criminal defense lawyer/public defender out there who reads all the crime-related local news stories to see if any of my previous or current clients were involved? Lately, there has been a lot in the news about MS-13, an allegedly violent Salvadoran gang. I once represented someone who was allegedly affiliated with MS-13, and now, I can't stop searching for and reading every article that comes out about them. Is this a bad thing?

Fellow Criminal Defense Bloggers

Congratulations to Arbitrary and Capricious on his 50,000th unique visitor! And welcome back to Alaskablawg, who has been gone for a short bit, but is back posting with a vengeance. And, it looks like many of us criminal defense bloggers have reached the Legal Ethics Forum, who notes that we say exactly what we think. That's a compliment, right?

Thursday, May 19, 2005

It's Starting to Look Like a Rout

While much of the media obsessed over whether Larry King got to testify in the Michael Jackson case, the testimony that actually was presented seems to have been another devastating blow to the prosecution's case. The latest witness was a close friend of the family who completely decimated the accuser's mother's claims of false imprisonment and extortion. I wonder what it is like as a prosecutor to sit there and listen to testimony from someone who cared about your "victim" so much she was crying at the beginning of her testimony, but who goes on to completely contradict the heart of your case. I also wonder if the prosecutors bothered to talk to this woman before they brought these charges. Or, if they bothered to talk to many of the other defense witnesses--like the orthodontist whom the mother says she took the children to in an attempt to escape Neverland, but who testified that she just took the braces off the kids, and no one ever said anything about being held against their will or even asked to use the phone? As the defense case builds to a crescendo, the prosecution's case just seems to get more and more hopeless.

Blogger Growing Pains

I added trackback from Haloscan today. Unfortunately, it seems to have wiped away all the previous comments that had been posted. I'm sorry about that. If someone knows how to retrieve them, I'd appreciate the advice. Otherwise, all that great wisdom is lost forever--unless they want to repost. Please bear with me as I experience a few growing pains.

And speaking of growing pains, I went over 2,000 hits sometime last night! Thanks to everyone who has visited, and a very special thanks to everyone who has posted about me and linked to me on their own blogs!

Wednesday, May 18, 2005

You are Suspected of Being a Person of Interest

I really wish authorities would stop using the phrase "person of interest." I'm not sure where it originated (after Richard Jewell, maybe?), or why all law enforcement agencies dealing with media cases have decided to use it, but it's just stupid to me. In the old days, they would call a person suspected of involvement in an offense a "suspect." Imagine that! It doesn't mean the person is the perpetrator--just that the police suspect the person might be the perpetrator. Of course, the media and the crime-of-the-week obsessed public love to run with it. And it can ruin someone's life--at least for a while--to be labelled a suspect. Perhaps worrying about lawsuits or maybe out of genuine concern for suspects who turned out to be innocent, cops suddenly stopped using it, and replaced it with the new fangled phrase, "person of interest." What the heck does that mean? Well, it pretty much means the same thing that "suspect" means, only with different words. Instead of implying that the police "suspect" the individual of involvement in the crime, it implies that the police are "interested" in the person's possible involvement in the crime. The police act like it means something different. In press conferences about the latest high-profile crime, reporters ask, "Do you have any suspects?," and the police respond that they do not, but that Joe Blow is a "person of interest." But you never hear the police change the characterization of someone from a "person of interest" to a "suspect." He either goes straight to being arrested and charged with the offense, or he is "cleared," or--in the case of an unsolved crime--he remains a "person of interest" in perpetuity. "Person of interest," then is just a euphemism for "suspect." But using a euphemism offers, at most, minimal protection from the consequences of being linked to a heinous crime. Consequently, to be labelled in the media as a "person of interest" has the same life and reputation-altering effect as being called a "suspect." I suppose there's not much of a downside to using "person of interest," instead of "suspect." But, if law enforcement is using it because they think it someone protects innocent people any better than using "suspect," I think they're fooling themselves.

The Burning Question

As Gideon sums up here, there's been quite a bit of discussion going around the blawgosphere about whether to blog from and about work. I thought about this a lot myself before I started my blog. I think I understand the pros and cons and I've tried to balance them here. On one hand, I don't think my blog would be what I want it to be if I don't post some personal experiences. My feelings about the criminal justice system are shaped by a lot of things, and one of the major ones is obviously my own personal experiences as a public defender. I like to think that my personal stories inform whoever might be reading this blog about just who is spouting off her opinion. I also have read quite a few posts on other blawgs from defense attorneys and public defenders that helped me get through a bad hour, bad day, or bad week because I knew that other people across this country were doing what I was doing, and were facing the same struggles I was. As I type this, I realize that it's sort of like a quasi-support group, I guess. On the other hand, I don't want to ever come close to revealing any privileged or confidential information. I certainly don't want to destroy any good professional relationships I have. And, obviously, I don't want to get fired. But, in the end, for me, I decided that for my blog, it just wasn't worth it for me to blog if I didn't throw some of my own personal experiences in the mix.

I do have some general rules to keep myself in check. I don't use any client names--not even first names. I never reveal client conversations beyond a general, "Client says he didn't do it" type reference. I also don't use any names of co-workers, prosecutors, or judges. I never, ever, ever blog about or even mention my boss or the particulars of my office. And I remain somewhat anonymous. I say "somewhat," because I'm sure if someone really wanted to figure out who I am, they could. But, I'm not going to advertise it either.

I recognize that it's possible, I might get burned for some of this. But, for now, I'm just doing the best that I can, hoping that some people get something out of this place.

What do you think?

Tuesday, May 17, 2005

Alleged Drug-Dealing DA Indicted on New Charges

Rick Roach, a former West Texas District Attorney currently awaiting sentencing on federal charges, was indicted on state drug-dealing charges today. Roach was a very active prosecutor against evil drug dealers in his district. The problem was that Roach seemed to be doing and dealing drugs himself. His own secretary apparently became an informant against him, telling of him shooting up in her presence right in his office. From other articles I've read, it appears that Roach had a very serious drug addiction. I feel sorry for him the same way I feel sorry for my clients in the throes of that addiction. The problem with Mr. Roach is that he showed no mercy to individuals he prosecuted with addicitions like his. He repeatedly asked judges and juries to throw the book at them--and they did. He now stands charged with offenses for which he could get (although I doubt he will) life in prison. It will be interesting to see what kind of plea for mercy he makes when he stands before the court.

Things I Would Change if I Could #2 - Juror Testimony

It's been a while since I posted about something in the jumbled swamp of Texas criminal law that I wish I could change. There are so many possibilities, I suppose, that it's hard for me to pick out any one thing. But since this issue came up in a colleague's case today, I'll throw it out there. (Note: What follows is a hypothetical, loosely based on my colleague's case, not a precise account of all the proceedings. No facts that affect the material legal issues, however, are changed.)

Let's say you represent someone charged with murder and your defense is identity--you don't deny the victim was murdered, but you say that your client didn't do it. At trial, you feel like you have done a pretty good job at poking holes in the state's case, creating reasonable doubt through their own witnesses. You call a couple witnesses of your own to shore some things up. For various reasons, you and your client decide that he should not testify. Despite your best efforts, the jury finds your client guilty and sentences him to prison. Then let's say that after the trial, one of the jurors sort of casually mentions something to you about the defendant not testifying. Just to be thorough, let's say that you have your investigator contact some of the jurors and ask them if they would mind answering some questions about their service. You don't force any of them to talk to you (not that you have any way of forcing them), and two or three of them say that the defendant's failure to testify affected their decision to convict. You'd think you would get a new trial out of that, right? Or, at least, you'd be able to present those statements by the jurors as evidence at a hearing on a motion for new trial. Well, you'd be wrong.

Rule 21.3 of the Texas Rules of Appellate Procedure permits a court to grant a defendant a new trial based on jury misconduct for a number of reasons. These include situations where the jurors decided by lot or some other game of chance (the old "heads, he's guilty; tails, he's not guilty" scenario); where the jury received evidence about the case from a source other than evidence produced at trial; and when "the jury engaged in such misconduct that the defendant did not receive a fair and impartial trial." So, what's the problem? Based on that rule, you'd think that you would get a new trial if you could establish that some jurors improperly, and in violation of the cour'ts clear instructions, considered the defendant's failure to testify as a fact against him. Right? At the very least, you would be able to present evidence of the jury misconduct at a hearing on your motion for new trial. Well, that's where things get sticky.

Rule 606 of the Texas Rules of Evidence prohibits former jurors from testifying as to anything that affected their deliberations except whether an "outside influence was improperly brought to bear" upon a juror. This means, that you cannot present any juror testimony (live or by affidavit) to establish that they violated the court's instructions not to consider the defendant's failure to testify--or anything else for that matter. You couldn't present juror testimony establishing that a juror voted to convict because of a bias or prejudice against the race or religion of the defendant or for any other reason clearly contrary to the law. Basically, you're screwed. You have a right to a new trial if the jury engaged in gross misconduct, but you have almost no way of proving they did.

Texas appellate courts enforce this rule strictly, repeatedly upholding trial court decisions to bar juror testimony, even in the face of statutory (that it violates Rule 21.3) and constitutional (that it violates the 5th, 6th, 7th, and 14th amendments) challenges. In one case, during deliberations, the jury repeatedly sent out notes stating that one of the jurors was insisting that she would consider the defendant's failure to testify regardless of the court's instruction not to do so. At one point, the note begged the court for guidance because they were worried that any future action by the jury would be unfair. Unphased by this development, the court merely instructed the jury to follow their instructions and repeatedly denied the defendant's motions for mistrial. Eventually, the jury convicted. At a motion for new trial, the trial court barred any juror testimony as to whether that juror or any other improperly considered the defendant's failure to testify. The appellate court upheld that decision.

This rule needs to change. I understand the policy reasons behind the rule. They don't want parties or their supporters harassing jurors in an effort to undo a verdict. But, that interest can be protected without such a drastic rule that excludes all juror testimony. It is already a felony to harass, intimidate, or threaten a juror based on his or her service. It is also a violation of attorney ethical rules to say anything to a juror merely to harass or embarrass the juror. Those protections--if properly enforced--are sufficient to protect jurors from harassment and intimidation. A blanket rule barring all juror testimony--even when that testimony establishes gross jury misconduct and a clear violation of a defendant's right to a fair trial--goes too far.

Rule 606 is bad law and bad policy. It is bad law when you deny a defendant any meaningful procedure to effectively enforce his consitutional rights. And it is bad policy when you allow a verdict to stand despite jurors' blatant disregard of their oath and their duty to follow the law.

You Can't Just Read the Label

Although this wasn't a criminal case, I was interested to read about this opinion from the Supreme Court yesterday striking down laws that ban out-of-state wine shipments made directly to consumers. It is one of those rare instances where the Court was asked to determine the constitutionality of a law that, on one hand, seemed to clearly violate one constitutional provision, but on the other hand, seemed to be authorized by another constitutional provision. It's not surprising, then, that it ended up being a 5-4 decision by the Court. But, another thing about the case that makes it interesting is the breakdown of the judges on each side. In the majority are Kennedy, Ginsburg, Breyer, Souter, and Scalia. In the minority were Rhenquist, Stevens, Thomas, and O'Connor. That's a pretty interesting make-up, in my opinion, and goes to show that political labels on judges like liberal and conservative, and even descriptions of judges like "strict constructionist" or "consensus seeker" or "pragmatist" can only tell you so much about how those judges will rule in a particular case.

Monday, May 16, 2005

True Believer

The LA Times has a nice profile of Ronnie Earle, the Travis County District Attorney investigating Tom Delay and friends for campaign finance improprieties. Far from being a liberal partisan, Earle is painted as someone who sincerely sees corporate campaign contributions (which are illegal in Texas) as a threat to democracy. The paper also notes that of the fifteen prosecutions of political officials Earle has instituted in his many years as DA, twelve of the defendants were Democrats.

Be a Dirty Cop, Get a Book Deal!

I don't quite know what to make of the claims made by former NYPD officer Robert Cea in his new book, "No Lights, No Sirens." According to this NY Daily News write-up, Cea claims to have routinely broken the law in his 12 years on the force. In addition to playing Russian roulette with suspects and cooking meth for informants, he claims to have "testilied" in 100 of the 500 felony arrests he made as an officer. Not surprisingly, the NYPD brass, denies his claims, pointing out that since he is an admitted liar, he can't be believed. (Why doesn't that argument ever work for me about undercover officers?!?) I'm willing to bet there is at least an element of truth to what Cea is saying, but it pisses me off that he does it in a book he's going to make money from. Doesn't New York have a law that prevents people from profiting from crimes by selling their story through books or movies? If so, why doesn't it apply to this guy? Don't get me wrong. I'm happy to see the information get out there where, hopefully, defense attorneys may be able to use it to correct some of these injustices. But, if this guy is so guilt-ridden about his conduct, why isn't he doing something to actually rectify it instead of just using it to sell a book?

Common Nonsense in Washington

To balance out some of the good stuff happening here in Texas, some really scary stuff on the criminal justice front is happening in Washington, D.C. Rep. James Sensenbrenner would appear to be a nutcase. I have no problem with nutcases in general. But when they chair the House Judiciary Committee, it starts to scare me. TalkLeft has some analysis and discussion of some frightening legislation targeting drug offenders in the federal system. If you lend a friend a valium in your house where you live with your kids, apparently you're looking at a mandatory 5 or 10 year federal prison term. There's lots more to be afraid of, including a weird mandatory snitch law where you could get two years in prison if you don't report drug activity around college campuses within 24 hours of learning about it. Reporting it, though, is apparently not enough. You also have to do everything possible to investigate and prosecute it, or else you're still on the hook. I can't imagine laws like this passing the Senate, but it's never good to be complacent. So, call and write your Senators and Representatives and tell them to kill this backward bill.

Friday, May 13, 2005

Common Sense Down in Austin

Grits for Breakfast has some updates on some more good stuff happening down at the legislature. Common sense probation reform is moving closer to becoming law. Grits has extensive coverage of this issue, which has been kicking around in the legislature all session. In addition, both the House and Senate have passed a bill which would get rid of one of the most non-sensical provisions of the Code of Criminal Procedure. As I've mentioned before, in Texas, a defendant is eligible for jury-assessed probation for just about every offense from first degree felonies down to class C misdemeanors. The one exception to that is state jail felonies which are the lowest level felonies. For some reason, only judges can assess probation for these offenses; juries are restricted to sentencing from 180 days up to two years imprisonment. There has never been any reason for singling out these offenses for this treatment. The new bill will correct this craziness by giving juries the power to grant probation in state jail felony cases. Now, it just has to get signed by the governor. And finally, the bill requiring written consent for searches after traffic stops has passed out of committee, and is one step closer to passage. As I've stated before, I think this is a very important bill. I'm pretty optimistic about this bill passing out of the legislature, but I'm wary of a gubernatorial veto. I wouldn't be shocked to see Gov. Perry veto it after the session is ended so the legislature has no way of overriding him. I'm keeping my fingers crossed.

"Recycled" Officer Arrested for Soliciting Bribes

A Dallas police officer was arrested yesterday for taking bribes in return for not arresting people on outstanding warrants. The article mentions that the officer was one of DPD's renowned "recycled" officers. The Dallas Police Department had a program where they would "recycle" officer trainees who couldn't make it through the academy. If they weren't good enough, they'd give them another chance. Then, maybe another. Until they passed. As a cheif training officer quoted in the article admitted, the program "was not as successful as the department had hoped."

It's Her Party . . . And Her Reprimand, Too

The Dallas judge who made national headlines last year for throwing a party at a hearing where she sentenced a man to life in prison was publicly reprimanded by the State Commission on Judicial Conduct. I'm happy to see that the commission didn't drop the ball on this case. This defendant was not a likeable guy. He did have a lengthy criminal history, and ran out in the middle of his trial for choking his girlfriend into unconsciousness. But, sentencing a man to life is not an occasion to throw a party with cake, balloons, and streamers. The best part is that nothing would have happened to the judge if she hadn't called the medai herself to have them come film the whole affair. This is the same judge, though, who has previously ordered probationers to attend church. So, it does not appear that she always uses the best judgment.

Wednesday, May 11, 2005

I Love This Job

Do you ever have one of those magical moments in the middle of a work day that just makes you so happy that you can't stop smiling and laughing and thinking about how great your job is? I spend a lot of time complaining about my job. If it's not the stupid laws, it's the stupid prosecutors, the stupid judges, the stupid clients. This week, I'm fighting a bad cold. I'm fighting with prosecutors and clients over plea deals. I'm fielding phone call after phone call from clients' mamas, wives, and baby mamas. Basically, it's been crappy. And then today, out of nowhere, I had one of those moments. My client was charged with felony prostitution (the fact that it is a felony is something I would normally complain about, but not today). She also suffers from paranoid schizophrenia and is mildly retarded. She has sickle-cell anemia and recently suffered a small stroke while in jail. Her mental health case worker was very upset when she was arrested because, although she has a long misdemeanor record, she had been diligently following her mental health treatment program, and hadn't been in in any criminal trouble in several years. Today, I managed to work out a plea bargain agreement for her where the DA reduced her case to a misdemeanor and she will have to serve a little more time in county jail, and then be released to her mental health case worker. When I told her, she was elated. She then presented me with a picture of me she had drawn while she had been waiting in jail. After we signed the plea papers, I explained to her what would happen when she was brought in front of the judge to enter her plea. She suddenly got very frightened, grabbed my hands, and asked if the judge would be mean to her. I assured her she wouldn't. The plea went through without a hitch. At the end of the sentencing, the judge closed with her standard line to defendants, "Good luck." My client responded, "Good luck to you, too. And if I win the Lotto, I'm going to buy you a car." Everyone got a good laugh. Sometimes, the most satisfaction you get in this job is helping someone who is guilty. Sometimes, it even feels like magic.

Tuesday, May 10, 2005

MIckey Sherman, SuperLawyer?

I see this guy Mickey Sherman on TV a lot as a legal commentator. I think he used to comment a lot on Court TV, and, when I see him now, he's always referred to as a "high-profile" or "prominent" criminal defense attorney. All I actually know about him is that he represented Michael Skakel--and lost. I'm not blaming him for that, but I just don't understand why this guy is such a hot legal commentator. Last night, on the Abrams Report on MSNBC, the "experts" were debating whether Michael Jackson would testify. Sherman said, and I swear this is true, "I don't see what he has to lose." And today, I read this little blurb about him at Indefensible. Again, I find myself asking why the heck this guy is some go-to legal commentator.

Cops and Basic Definitions

Yesterday, I watched a police officer testify in the punishment phase of a murder case. This officer wasn't involved in the murder investigation, but rather was the arresting officer on one of the defendant's prior criminal cases. Twelve years before, this officer had pulled the defendant over for a traffic violation, discovered he had ticket warrants, and arrested him. While doing an "inventory search" of the car the defendant was driving, he found a handgun in the glove compartment. The officer charged the defendant with unlawfully carrying a weapon. This all seems very straightforward and unremarkable. Then, defense attorney starts cross-examining the officer. It turns out that both the car and the gun belonged to the defendant's uncle, and the defendant was just borrowing the car for an errand. The officer knew none of this because, he testified, he never bothered to ask the defendant if the gun was his or even if he knew it was there. He went on to say that he never asks those questions because for unlawfully carrying a weapon, you just have to show "care, custody, control, or management" of the weapon. Except that is not the law at all. That is the definition of "possession,"--applied, for example, in drug cases--and does not apply to UCW cases which use the much more narrow definiton that an individual carry the weapon "on or about his person." When confronted with this fact, the officer continued to insist that "care, custody, control, or management" might not be the "technical, legal definition," but it was a "basic definition" of "carrying." Gee, I would have thought that a police officer arrested people for conduct that actually violated the "technical, legal" penal code, as opposed to just the "basic definition" of what the cop thinks is wrong. Silly me. And this is a man who has been a police officer in the State of Texas for fourteen years! He testified that he had arrested "hundreds" of people for UCW, a crime for which he clearly did not even know the definition.

Life Without Parole Watch

Salon has a pretty good article on the pending life without parole legislation here in Texas. The article makes reference to the case of Kelsey Patterson, one of the most shameful executions in recent Texas history. Patterson clearly suffered from paranoid schizophrenia, yet was allowed to represent himself in a capital case, where he attempted to subpoena Jesus Christ, among others, and complained during trial about radio transmissions in his head. In an extremely rare move, the Texas Pardons and Parole Board voted 5-1 to recommend that Patterson's death sentence be commuted. (In Texas, the Governor does not have the power to commute a death sentence unless the Pardons and Parole Board has recommended it.) Nonetheless, Perry--comforted by the fact that no Texas governor has been turned out of office for executing too many people--allowed the execution to proceed.

Monday, May 09, 2005

Prosecutor in Trouble for Stealing Defendant's Notes

Via Indiana Public Defender, here's an unusual story. Prosecutors are actually facing discipline for violating the ethical rules. This almost never happens, mainly, I think, because defense lawyers fear the retribution for reporting misconduct to the disciplinary authorities. I guess this was too much to overlook.

Warrantless Searches at Their Fingertips?

I've been skimming over Grits's worrisome posts about biometric data being stored by Texas DPS over the past few weeks. I basically agreed that it sounded like a bad idea and was glad the ACLU was doing what they could to oppose it. Then, I read this post, and realized how frightening it should be for criminal defense lawyers. I can just see the government's arguments in response to a motion to suppress now. "Your honor, there could be no reasonable expectation of privacy if the passwords for the records were biometric data the defendant should have known was already in possession of the State." And since there's no reasonable expectation of privacy, there's no search. No search, no need for a warrant.

Nancy Strikes Again

Update: The Fulton County Daily Report has a nice write-up of Nancy's recent troubles with appeals courts. As I predicted, this is what happened when they asked Nancy for comment:

"It's a lifetime of work," she said, noting that she decided to become a lawyer after her fiance was murdered.

Echoing the tone she frequently takes on her TV show, which often focuses on crime victims, Grace asserted that Stephens was responsible for murdering three young people.

"Who knows what they could have become today?" she asked.


Original post:

The hits with Nancy Grace just keep on coming. Thanks to The Volokh Conspiracy via Alaskablawg, I discovered this opinion from the 11th U.S. Circuit Court of Appeals. It is a habeas appeal from one of Nancy's old murder cases. The legal issues are pretty cut and dry. The defendant alleged that he was denied due process of law because of Nancy's misconduct. Bound by the AEDPA restrictions to determine whether the state courts made unreasonable applications of constitutional law, the court denied habeas relief to the defendant (I know all the habeas lawyers out there will be shocked!). But, if you look closely, you'll see this is no ordinary habeas denial. The court actually names Nancy as the prosecutor accused of misconduct. That is almost unheard of in appellate opinions--even in cases where they actually overturn the conviction based on the misconduct. And, although the federal court ultimately determined that the defendant wasn't entitled to habeas relief, they had some choice words (by federal appeals court standards) for Nancy. According to them, Nancy "fail[ed] . . . to fulfill her responsibilities" as a prosecutor, and "'played fast and loose' with her ethical duties." I'm sure that in Nancy's mind, it was all justified because she knew the guy was guilty.

Blogging Break -- Fun and Games

Update: Client and co-defendant took the plea, so I won't be in trial this week.
Original post:

I'll be out of the office for the rest of the week at a CLE. Until then, occupy yourselves trying to predict the outcome of this situation. Client and brother are charged with aggravated assault with a deadly weapon which carries a possible sentence of 2 to 20 years in prison (must serve 50% of sentence before being eligible for parole). Brother has already had his deferred probation (for a previous aggravated assault deadly weapon case) revoked and been sentenced to 15 years, but he is appealing that decision. (Chances of successful appeal = approximately 1 in 100 million). DA has offered both defendants time served on a misdemeanor assault. The deal is only good if both defendants agree to take it, because the DA says he's only offering it to spare his victim from having to testify again after already testifying at the revocation hearing. (Insert requisite Nancy Grace outrage at plea bargain offer here.) Both cases are set for trial on Monday. Will they take the deal? Will they roll the dice at trial? Will I be able to blog on Monday? Make your predictions now, and I'll tell you how you did when I return next week!

Happy Mother's Day!

Tuesday, May 03, 2005


Client was charged with possession of between 4 and 200 grams of cocaine with intent to deliver, a first degree felony. Because he had a prior final felony conviction, his range of punishment, if convicted, was 15 to 99 years or life in prison. There was a pre-trial offer to drop the felony enhancement and get five years in prison. Client rejected the offer. The case was set for a motion to suppress hearing and a jury trial last week. At the hearing on the motion, the officer testified that he was driving by a hotel known for drug activity. He observed a man on a second floor landing quickly enter his room upon seeing the officer. He then observed Client standing by his car in the parking lot. When he approached, Client turned and walked away. Officer stopped Client and asked him to identify himself. Client did, and produced a work ID. Officer asked for an official government ID. Client told officer his ID was upstairs in his room. Officer told him to go get it. Client proceeded upstairs towards his room. Officer followed. Client opened the door to his room and the officer just followed him in. There was no invitation from the defendant and no request from the officer. He testified that he just followed him in because they were having a friendly conversation. Upon entering the room, the officer observed two other individuals in the room. He also observed a shaving bag on the dresser with what appeared to him to be a crack pipe sticking out of it. Officer unzipped the bag in order to retrieve the crack pipe, and immediately spotted drugs in the bag. Client was arrested. Room was searched incident to arrest and a scale was found. Our argument on the motion to suppress went like this:

1) Officer detained Client without reasonable suspicion
2) Even if he had reasonable suspicion, purpose of detention was completed once Client identified himself, and further detention was without legal cause
3) Officer illegally entered Client's room without a warrant
4) Officer's claim that he believed Client was consenting to him entering the room because they were having a friendly conversation did not meet burden to show consent by clear and convincing evidence (unlike federal law, Texas law requires the state establish consent by clear and convincing evidence, not merely a preponderance)
5) Even if Client had impliedly consented to Officer's entry, under the circumstances, consent was not voluntary
The judge took the issue under advisement and allowed us to submit caselaw and a memorandum. The jury trial was held to this week while the judge considered his decision. Yesterday, the judge told all parties to report for jury selection at 1:30 p.m. No jurors were available at 1:30 p.m., so we were told to be in court at 8:30 a.m. At 9:00 a.m. today, the judge informed us that he was granting the motion to suppress. Seriously. Like, for real. Awesome.

Charges for the Runaway Bride?

Update: TalkLeft reports that Ms. Wilbanks recanted her false kidnapping story within an hour of questioning by police and FBI. Knowing that, I don't think a criminal prosecution here is warranted. All the expenses incurred in searching for her--what people are really upset about--were incurred before she made her false statements, so I don't see why that justifies criminal charges. The NY Times reports that city officials in Duluth are exploring whether they can sue her for restitution of what they spent searching for her. I don't know what possible cause of action they could have against her. She didn't owe the city a duty not to disappear. She never asked them to look for her. She violated absolutely no laws by disappearing--even by planning it in advance. The town might try to recoup the money from her family, since they are the ones who reported her disappearance and requested a search, but they were acting in good faith when they did that. There's nothing to suggest that any of them knew this was a hoax. My guess is that the family will cough up some of the money they had set aside for a reward and voluntarily reimburse the authorities. That would be the nice thing to do.
Original post:

There's a lot of discussion going on about whether Jennifer Wilbanks, the so-called runaway bride, should face criminal charges for her conduct. This is a tough one for me. On one hand, I don't think it's a good idea for people to think that you can get away with falsely reporting that you were abducted. On the other hand, I don't want people who have made false reports to be so fearful of the punishment they could get for admitting they lied that they continue to stick to their false story. I think criminal charges are appropriate if someone sticks to the false story all the way through a trial, and obviously, if they perjure themselves, that must be prosecuted. But in this case, it appears that she admitted the story was false very soon after she was questioned. A lot of people are upset about all the time and money that went into the search for her, and that is understandable. But I'm not sure any of that is attributable to her false report. Unless there's more to the story that hasn't been reported, she voluntarily disappeared. That is not a crime. She didn't appear to have committed a crime until she resurfaced and claimed to have been kidnapped. By then, all the expense and effort to find her had already been expended. Even if, as it now appears, she planned her disappearance ahead of time, and took steps to hid her tracks, that just means that she didn't want to be found. It doesn't mean she conspired to fake her abduction or intended for there to be a massive manhunt. And the fact remains that she recanted her false report within a few hours, and it doesn't sound like the FBI or the Albuquerque police spent much of anything looking for her "kidnappers," as it appears they had major doubts about her story from the beginning.

I have had many cases where the alleged victim told me that he or she had lied to police in the initial report. They made the story up because they wanted my client out of the house, or they wanted to teach him a lesson, or they were just really mad at my client for a million different reasons. But, by the time I talk to them, they are worried that if they tell the truth, they will get charged with making a false report. Now, it would have been better if this person had been deterred by the law against making a false report before we got into this whole mess. But now, the fact that making a false report is a crime is deterring the person from telling the truth and exonerating my client. That kind of deterrence doesn't make the criminal justice system better.

And that's what makes this case so difficult for me. I feel sorry for everyone who spent so much time, money, and energy looking for this woman. And I feel sorry for the fiance, who no doubt faced some very tough questioning from investigators who suspected he had killed her, not to mention the suspicion in the community. But, isn't better that she felt safe enough to come forward and admit she had lied now, than if she had been so worried about being prosecuted that she had kept up the charade? Then again, she told the truth likely knowing she could be prosecuted, so maybe all my handwringing is for nothing.

Monday, May 02, 2005

Good Stuff in Austin

Grits for Breakfast has an update on some of the good criminal justice bills moving forward at the Texas Legislature. I am happy to see that they are moving on a bill to allow juries to give probation to people convicted of state jail felonies. Right now, a jury can give probation for virtually every first, second, or third degree felony (including murder, rape, robbery, drug dealing, and child molestation) to a defendant with no prior felony conviction. But, a jury cannot give probation for state jail felonies (the lowest level felonies in Texas) like theft, unauthorized use of a motor vehicle, and possession of less than a gram of a controlled substance. This has never made any sense to anyone that I know, and it's about time the legislature got around to fixing it.

Nancy Knows All!

Because I just can't resist every opportunity to highlight what's wrong with Nancy Grace, I had to include these comments from Nancy on the Jennifer Wilbanks case. Not surprisingly, Nancy has been all over this media circus from the beginning. But before Jennifer turned up safe, Nancy threw in her two cents. On her April 28th show, Nancy commented:

"Well, look, I don`t have a degree in being a police chief. But I can tell you this much: This is not cold feet, all right? This is not cold feet. I know that much."
You tell 'em, Nancy! And, the next day, Nancy had this enlightening conversation with Jennifer's father:

GRACE: With us, everyone, is Harris Wilbanks. Mr. Wilbanks is the father of Jennifer Wilbanks. Sir, we are flashing her photo for viewers to take a look. Mr. Wilbanks, this sounds completely unlike Jennifer to just disappear. I just don`t believe it`s a case of cold feet.

WILBANKS: Right now, I would hope and pray it would be a case of cold feet.

GRACE: Yes, sir.

WILBANKS: I don`t think that`s what it is, but I would certainly welcome that at this point in time.

Just hours later, Jennifer showed up in Albuquerque, reporting that she had been kidnapped. And hours after that, as you all know, she broke down and admitted that she had just run away--a case of cold feet. I'll be tuning in to Nancy's show tonight to see her eat crow. Hey, a girl can dream, right?