The Wretched of the Earth

Witnesses Coached

2010-01-26T05:50:00.000-08:00

All lawyers have heard of wood-shedding a witness - to prepare a witness for testimony in such a way as to coach him/her or suggest how he/she should testify in order to best help your case. Any diligent lawyer should prepare his witness for testimony; you'd be crazy not too (witnesses often say the craziest things). As the law school adage goes: "don't ask a question you don't know the answer to." How can you ask any questions if you don't know how your witness will really answer???

But it's easy to cross the line into coaching/woodshedding a witness. An article on the Oklahoma Bar Journal website says it well:

While appropriate to encourage a witness to look at the jury or judge, to speak clearly and act confident while testifying, going much beyond that may lead to unintended consequences. A suggestion that a witness who may not be all that certain of a particular fact to change that demeanor in order to appear more assertive may very well cross that boundary from simply “preparing” a prosecution witness to impermissible “coaching” or “wood shedding” of that witness.

The Dallas Morning News has an article today on the case against Richard Miles for murder. At the trial, a witness, Marcus Thurman, identified Miles as the man who shot the victim. In a sworn statement taken this January, Thurman now says he didn't identify Miles because he recognized him as the shooter. In fact he says he didn't recognize Miles. Thurman says he identified Miles in court because the prosecutor, Thomas D'Amore, coached him to do so.

I've seen Thomas D'Amore around the courthouse but I don't know him, so I have no way of shedding any light on whether this is likely to be true or not. I can say that if this is true it's beyond unacceptable.

CCA Review - Introduction

2010-01-02T08:21:00.001-08:00

Okay, on a previous incarnation of this blog, I summarized, explained, and (often) critiqued rulings issued by the Texas Court of Criminal Appeals (CCA).

In Texas, there is no "Supreme Court" for criminal cases. The Texas Supreme Court is the highest Texas court when it comes to civil cases. It does not hear criminal cases. The CCA is the highest Texas court for criminal cases. You think that is weird? In New York the "Supreme Court" is the trial level court. Now that's weird.

So now that I've restarted the blog, I'm getting back on top of these CCA opinions. They generally come out once a week; I'll try to get to them as quickly as possible. Of course sometimes I'll be busy with trial or on vacation et cetera, but I'll get them out. Also, I'll be writing these for a lay audience. I imagine I'll get lawyers reading these posts, but I'm pretty sure the bulk of my audience will be non-lawyer. I'll write accordingly by not assuming you already know legal procedure and terminology. I won't write about every single case that comes down, just the ones that I deem interesting for legal or social reasons.

Enjoy!

Judges' Background

2010-01-02T08:20:00.001-08:00

I usually don't agree with a thing Gov. "Good-hair" Perry does, but this is one of those blue moon exceptions. Perry just appointed a friend of mine (and former Assistant Public Defender), Jennifer Balido, to the 203rd Judicial District Court in Dallas.

I don't like this move just because I like Judge Balido. Or because I worked with her at the PD's office. Or even because she sat 2nd chair on my first murder trial. I like this move because Judge Balido has experience as a defense attorney. And not just a defense attorney, but as a PD. So many judges have prosecutorial backgrounds (as does Balido, actually - she started her career at the Dallas DA's office). Much fewer come from the defense (and even fewer truly understand what it means to be a PD).

Having judges come from both sides of the criminal isle is not just more fair, but it makes for a better system. Everybody understands everyone else's role better. And anything that makes for a better system is a good thing (Lord knows our system needs all the help it can get)! IMO at least, ideally judges would have experience on both sides (prosecutorial and defense).

Trials Extremely Rare

2010-01-02T08:19:00.000-08:00

Thanks to Scott at Grits for Breakfast for his Texas 2009 Judiciary By the Numbers post I saw the 2009 Annual Report for the Texas Judiciary. What struck me as obvious always seems to strike some of my clients and friends as somewhat surprising - that trials are very, very rare. The vast majority of all cases are settled short of trial. In fact, overall only 2% of felony cases go to trial (only 1% for misdemeanor cases). The more serious the crime, the more likely it is to go to trial (judges, prosecutors, and defense attorneys all hate to go to trial on small-time state jail felony charges but generally relish interesting, important trials).

But that brings me to a myth I hear all the time from criminal clients: that going to trial costs thousands, tens of thousands, or even a hundred thousand dollars (and therefore is a good way to stick it to the Man). I usually hear this from court-appointed clients. It's usually coupled with the attitude of "I'm not taking nothing; they're going to have to give it to me" (note: notice they're not saying they're innocent of the crime, those folks are a different breed all together. These folks know they did it but have an axe to grind and simply want to weigh down the system). I don't know where they get the idea that trial costs so much. Sure - you can factor in the judge's salary, the prosecutors' salary, and court staff involved in putting on a trial (bailiffs and court reporter), but all those costs are fixed whether the court is in trial or not. In fact, trial has almost no bearing on those costs - some courts go to trial all the time, while others are hardly ever in trial, but neither seems to have a bearing on any of the folks involved.

The accused should only base his or her decision of whether to go to trial on a couple of things: 1) can the State prove they committed the crime? and 2) do they think they can get a better sentence from a judge or jury after a trial than whatever the prosecutor is offering by way of plea bargain?

Criminal Law & Family Law

2009-12-14T09:38:00.000-08:00

When I decided to become a criminal defense lawyer, I told myself that I would be a criminal law specialist. I wouldn't be a family lawyer or a personal injury lawyer or review contracts, et cetera. I stuck to that premise for a good bit of time, but recently things changed. A friend of mine went out on maternity leave and needed someone she trusted to watch over her files. I'd be doing her a favor and learning a new area of the law in one swoop; it sounded like a good idea so I jumped on it.

I quickly realized the inter-connection between criminal law and family law. These days family law is inter-connected to all areas of the law for one simple reason: all clients, be they accused of crimes or be they corporate big-wigs, have family legal issues. Divorce, child custody/visitation, child support, adoption... everyone either experiences or knows someone who experiences at least one of these issues at some point in their life.

I pride myself in helping my clients - not just representing them on a case, but listening to them, really hearing them out, and then helping them through whatever it is that's troubling them. During the last 5 years that's almost exclusively been criminal-related problems. But more and more those problems involved a violence spouse they needed to get away from, a fresh start needed after a marriage soured over the years, a grandchild they needed to provide for...

So I'm still not going to be a personal injury lawyer or a contract review lawyer - but I will split my practice between criminal AND family law. Both can be trying but let's face it: they can both also be very, very rewarding.

Five vs. Sixty

2009-12-06T20:43:00.000-08:00

So I just finished a trial of a sexual assault of a child case. It was a hard case for everyone: the allegations against my client were bad enough, but also my client was facing 5-99 years or life imprisonment, the prosecutor had a delicate complaining witness, and the families on both sides had an enormous emotional investment in the outcome.

But it was a trial and a trial is a trial. The judge made rulings that cut both ways, the prosecutor argued that my guy was dangerous and needed to go away for a long time, and my guy (obviously) disagreed. What I wanted to talk about was plea bargaining.

I think most people fundamentally misunderstand plea bargains entirely. Like thinking that anyone who accepts a plea must be guilty. "If they weren't guilty they wouldn't accept a plea," they say. "I'd never plead to something I didn't do." Um...yeah. Come back and talk to me after you've walked a mile in my criminal clients' shoes. Plea bargaining is pretty adeptly named; it's a purely business decision. Sadly, getting swept up in principles like guilt and innocence sounds nice, but sadly for more than a few of my clients (and a disgusting number of exonerees), it's a luxury you can't afford.

The bottom line is this: you have decide if you're comfortable rolling the dice. If you are, then you go to trial. If you're not, then you have to take the deal if what the prosecutor offers is better than what you'd likely get from a judge or jury. Case in point: my trial last week. The final formal offer was 10 years in prison but we probably could've gotten 5 years. He took it to trial and the jury gave him 60 years. That's a spicy meatball!

Hi, My Name Is....

2009-12-06T20:24:00.001-08:00

So this isn't the first time around the block for this blog; this is a reincarnation. Back in the first go 'round, I wrote the Wretched of the Earth as a public defender. I wrote the blog anonymously because, as a PD, it isn't safe to blog out in the open. It's not smart office politics, local politics, and can be bad for courthouse politics. I was outed by a well-meaning Dallas Observer reporter and things went down from there. Eventually I was encouraged not to blog anymore by friends who were looking out for me (and some non-friends) and that was it. I walked away from blogging and a whole bunch of wonderful regular readers (sorry guys!). Then back on September 1, 2008 I resigned from the Dallas County Public Defender's Office over the ridiculous workload foisted upon us.

But now after a long hiatus, I'm ready to get back into the swing of things. This time I don't have the constraints: I'm not a public defender and don't work in an office where I have to watch my tongue (I'm my own boss, so my boss is pretty cool).

So here are the rules for this here blog. I'll post as regularly as a busy criminal and family caseload will allow. I will do so out in the open, under my name. I won't ever break client confidentiality. I won't insult or otherwise talk trash about judges, prosecutors, other attorneys, court staff, or clients by name. I will, however, write unflinchingly about my work. Feel free to post comments but please, don't comment just to insult me or another commenter. Have something constructive or interesting to say. Other than that, it's all fair game.