Friday, June 24, 2005
Nothing Says Romance Like Sending a Guy to Death Row
911 Hall of Shame
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.
Thursday, June 23, 2005
Manslaughter Verdict in "Mississippi Burning" Case
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
Flag Burning War
Speaking of a marketplace of ideas . . . What do you think? Post your comments here, and vote in the new poll question.
Tuesday, June 21, 2005
Confessed and Exonerated
Fake Lawyer on the Prowl?
The Story of the Case
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.
Monday, June 20, 2005
Governor GoodHair Screws Us Again
Thursday, June 16, 2005
Almost Done . . .
Wednesday, June 15, 2005
Apprendi, Blakely, and Juveniles . . . A New Twist?
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.
Monday, June 13, 2005
Michael Jackson Not Guilty on All Counts
Supremes Smack Texas Death Penalty System . . . Again
Friday, June 10, 2005
CPS Going Nuts?
Media Alert! Pretty, White Girl Missing!
Why "Tough on Crime" Didn't Work This Time Around
Thursday, June 09, 2005
I'm Baaaaaack . . . Sort Of
Wednesday, June 01, 2005
See you next Thursday.
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.