Waco Criminal Law Blog

Your case is reversed - now what?

Walter Reaves — Thu, 09 May 2013 07:31:59 -0600

A case i have been working on for a number years demonstrates that what happens when your conviction is set aside is not necessarily what you would expect. Although it's clear to me - I guess those years in law school did really morph my brain into thinking like a lawyer - I realize how difficult it is to understand for the lay person who hasn't been corrupted by law school. The biggest reason is that the legal system is often counter-intuitive. Nowhere is that more apparent than in pot-conviction cases.

Most people believe that if your conviction is reversed you get out; it makes sense - how could they still hold you. This is where legal "fictions" come into plea. In a writ of habeas corpus the positive action the court can take (other than finding actual innocence) is to set aside the conviction. That doesn't mean you are not guilty. Instead, it means you back to the position you were in before you were convicted. Basically it's a "do over". You are still under indictment, and your case is returned to the Court where the indictment is issued. That means the case goes back on the trial docket, and trial dates and court dates are set just like in any other case.

In this particular, the indictment was returned in 1987 - so it will clearly be the oldest case on the docket. The judge is retired. the DA gone, and the lawyers retired, so we will be starting over with all new players.

It's been a long road to travel so far - it looks like we may still have a ways to go.

Gaining a client's perspective - the hard way

Walter Reaves — Mon, 06 May 2013 07:00:47 -0600

I've been out of the office for the last 2 1/2 weeks.- Not because I've been on vacation or doing something fun. Exactly the opposite - I live in West, and my house was one of those destroyed in the fertilizer plant explosion. For the first 10 days after the explosion I learned what it must be like for our clients, who are at our mercy for knowledge about what is going on in their cases.

Since my house was one of those in the most heavily damaged zone we were not allowed back in for almost two weeks. Most people - myself included - left with nothing more than the clothes on their backs. They couldn't go back to pick up things like a toothbrush, new underwear and socks, and all those other things we generally take for granted. They also were in the dark about how badly damaged their houses really were - few people spent a lot of time surveying the damage since there was raging fire a short distance. Many were like me, and had family members - for me my daughter - calling and yelling at me to get out. For 10 days we were basically in the dark about what was going on.

I was more fortunate than most since I'm also the city attorney (somebody has to do it) and got to sit in on most of the briefings. Even with that knowledge I still didn't know when we were going to get back. I couldn't control it, and didn't really have any idea how they were going to make the decision. I was anxious to get back in and try to salvage what I could, and determine how bad things really were.

It occurred to me that is how our clients often feel. They are worried about what is going to happen, and usually stressed out. They don't really have any idea what is going on, and how their future is going to be decided. The less they know, the more they worry. It is up to us as lawyers to help them through that by providing as much as information as we can, and helping them understand the process. We all know that, but sometimes we forget just how important it is.

For me, I now have a new appreciation for how important information and knowledge is.

The highest bond for a misdemeanor ever?

Walter Reaves — Thu, 04 Apr 2013 19:08:10 -0600

The purpose of bail is to ensure the defendant shows up for a court. After all, everyone is presumed innocent until found guilty - so you shouldn't keep someone in jail before trial unless you have to. Public safety can also be considered, but generally a bond must still be set.

As a general rule the more serious the offense the higher the bond. The theory is that someone facing a lengthy stay in prison might not have a lot of incentive to show up in court. On the other hand, people charged with minor offenses generally show up to take care of their cases since not doing so only makes things worse. Bonds vary from county to county, but generally bonds for most misdemeanors are in the range of $1,000 - $5,000. That is, unless you decide to threaten a public official in Kaufman County.

Not surprising, everyone in Kaufman County is on edge, and I don't blame them. I've been practicing more than 30 years and I've never seen anything like this. You expect the crazies to surface, and apparently they have. Two men have been arrested for terroristic threat - One of them, Nick Morale apparently called a tip hotline and made a threat against public officials. Not the brightest move, but it's only a Class A misdemeanor. You wouldn't know it by the bond though.

Morale's bond was set at one million dollars!!! In a lot of places a bond for capital murder wouldn't be set that high. So what did officials have to say about the bond - officials say they want to send a message they aren't going to tolerate that kind of conduct. So whether he did it or not, and no matter what the circumstances, he's going to be punished before he even gets to court.

This may be a new record for a Class A misdemeanor. Has anyone ever seen a bond for a misdemeanor set that high?

Who owns the file?

Walter Reaves — Wed, 20 Mar 2013 13:18:31 -0600

The Court of Criminal Appeals issued an opinion in a mandamus action today that left me scratching my head. The case - In re Patrick McCann and Albert James Turner. involves an order that an attorney turn over his file to the lawyer who was working on a habeas application. What left me scratching my head was the way the case got to that point.

Apparently the habeas lawyer requested the file from the trial lawyer so he could prepare an application for habeas corpus. The lawyer refused to do so without a waiver signed by the client - nothing wrong with that, since you want to make sure the client consents. Apparently he didn't because he refused to sign the waiver.

Since he didn't have a signed waiver, the trial lawyer refused to turn over the file. The trial judge held him in contempt, and the mandamus was filed.

What left me scratching my head was why the client refused to authorize the release of his file so that the new lawyer could file his writ. Normally you want that information. After doing a little checking I may have found at least a partial explanation. It appears Mr. Turner was not happy with his trial lawyer, and moved to represent himself after he was convicted. According the lawyer Mr. Turner suffers from paranoia, which might explain some of his actions. In the meantime, the Court is going to decide issues that are going to have an impact. Here are the three questions they requested briefing on:

1. To whom does a client's file belong?

2. If the file belongs to the client (the defendant in the underlying case here), what are the possible consequences should the client refuse to turn over the file to subsequent counsel?

3. If the file belongs to the client and the client is unable or unwilling to decide whether to turn over the file, to whom does that decision fall (e.g. former counsel, subsequent counsel, trial judge, or guardian appointed for that issue)?

Stay tuned to find out the answers.

Even if the evidence still exists you can't trust it

Walter Reaves — Wed, 06 Mar 2013 14:26:00 -0600

Last week the Court of Criminal Appeals decided a case involving a discredited DPS lab analyst - Jonathan Salvadore. It had previously been discovered that Salvadore fabricated test results. In last weeks case the habeas applicant challenged the test results in his case - since it had been done by the same person. The Court granted relief, after sending the case back the trial court and learning that evidence had been destroyed, and therefore could not be retested.

This week they reviewed a case involving the same analyst, although in this case the evidence had not been destroyed. However, the result was still the same. The court held that since the evidence was still in the custody of the same analyst, custody of the evidence had been compromised.

These are significant decisions because of the assumptions used by the Court. Instead of having to prove the results were flawed in the case before them, they assumed any results would not be reliable. Not only that, they now assumed that they cannot trust the analyst to main proper custody. This effectively means that any case involving Mr. Salvadore can be set aside.

Credit the court with doing what it can to maintain the integrity of forensic evidence. Hopefully decisions will have an impact on labs, and their personnel.

More thoughts from the AAFS convention

Walter Reaves — Sun, 24 Feb 2013 17:20:15 -0600

It's easy to become optimistic after attending a convention like this. All the forensic scientists understand the problems with using science, and want to fix them. I also heard several judges who clearly get it; one even talked about the disparate treatment given prosecution and defense experts, and the overall lack of scrutiny given by judges to scientific evidence.

One of the stories I heard pointed out the problem we still have - incompetence on the part of both defense lawyers and prosecutors. The story involved an identification hearing before a federal magistrate - another state was trying to gain custody of the defendant, and he was claiming he was not the person named in the warrant. The only testimony came from a fingerprint analyst, who was limited to poor quality photographs on the documents. What was remarkable was that the defendant didn't challenge the evidence, and the prosecutor didn't seek additional verification. Instead, it was the magistrate who took it upon himself to appoint a court expert - something I have never seen.

The failure of the defense lawyer to challenge the fingerprint identification is difficult to understand. When the client claims it isn't him, and the evidence is suspect, that should be the first thing you do. Add on the problems that have been identified with fingerprints in general, and it's a no brainer.

The prosecutor doesn't get a pass either. He has a duty to ensure he is presenting accurate evidence, and should not have simply accepted the file as it was given to him. Were it not for the judge, the case would sailed right through the system.

Unfortunately, I don't think this is an isolated. Even though the NAS report has been out for several years, most lawyers still don't know about it. And even if they've heard about, they don't know what to do with it. It's no longer good enough to know the law - you now need to keep up with the science, and know where the problems are.

The lawyers, judges and prosecutors who go to these conventions get it. Unfortunately, that's a very small number. We need to do better at the spreading this knowledge to others.

Lessons from the 2013 AAFS convention

Walter Reaves — Sat, 23 Feb 2013 06:15:07 -0600

I just finished attending my third American Academy of Forensic Sciences convention. As usual, there were too many presentations to attend, and most of the presentations are far too short. Unlike most legal CLE, most of the presentations are only 15-20 minutes, which just lets you hit the high points.

It's been a couple of years since the NAS report came out, and it looks like forensic scientists are no longer complaining about it - and have accepted its here to stay. People are still defensive though, and I observed several people comment when it appears their particular discipline was being attacked.

I've spent a lot of time thinking about this issue, and while I don't have answers, I do have some general observations. First, I don't think most forensic scientists are bad people, and out to help the prosecution. There may be a few, but I think they are the exception. Instead, I believe almost all forensic scientists think of themselves as impartial, and try to do the best possible job. As a result, they take offense when lawyers attack them. At the core, I think this reflects a basic understanding of human nature and psychology.

The fact is most forensic scientists work for state labs - as a result, almost all of their contact is with the state, whether it be police or prosecutors. We all tend to relate to those we hang out with. For the most part, they know the officers and prosecutors, and probably have spent a lot of time talking with them. They may even know a few things about their personal lives. If you don't believe this, think about the people you work with. There me be someone you hate, but for the most part you consider co-workers at least casual friends. If there was a dispute involving them and someone you didn't know, you would probably identify with your co-worker. It's not a conscious decision - instead, you don't give it a second thought.

Why should forensic scientists be any different - they are people just like anyone else. While I don't think they consciously set out to take sides, they can't help but do so. They identify with the prosecution, and I have seen that demonstrated time and time again. When you tell someone you are a defense lawyer, more often than not they make a comment about being on the other side.

The problem is not with the individual scientists, but with the system. The decision to separate crime labs from the police and make them independent is another discussion. But I still don't think that will completely eliminate the problem. Because they still are going to deal primarily with the police and prosecutors.

Everyone involved has the same objective - to seek the truth. While we all recognize that, I don't think we have come to grips with the human dynamics involved.

I've got some more thoughts - particularly on the caliber of the people that attend these conferences, but I'll save that for the next installment.

It looks different from the other side

Walter Reaves — Sun, 10 Feb 2013 21:35:00 -0600

Unless you've been out of the country or otherwise disconnected from the world you know that the court of inquiry involving former District Attorney (and current judge) Ken Anderson was held last week. The purpose was to look into his actions in handling the prosecution of Michael Morton - who was exonerated after spending 25 years in prison.

Pamela Coloff with Texas Monthly wrote a terrific piece on the case, and also reported on the hearing. Her report of Anderson's testimony was telling for several reasons. He clearly did not believe he should be there, and made sure everyone knew it. Here's what she wrote:

The former Williamson County D.A. was defiant as he fielded questions by attorney pro tem Rusty Hardin; Anderson discounted the importance of the inquiry itself, struck a sarcastic tone, and cast himself as the victim of a “media frenzy.” He offered a vague apology to Michael Morton without taking any personal responsibility for his role in Michael’s wrongful conviction, stating that “the system screwed up” and that he could not think of anything he could have done more than a quarter century ago that would have caused a different outcome.

Michael Morton probably had the best insight into his testimony, stating:

“I think we saw someone who is still struggling with denial and anger. . . .This is a man who has been in a position of power for almost three decades, and for the first time has had to answer for his actions, and he’s very uncomfortable with that.”

Some people would be humbled by being placed in that situation. The fact that he wasn't tells you all you need to know about his character.

What I found telling were his complaints about the process - the same complaints that have probably been made by thousands of people he prosecuted. He's upset about spending his life savings against charges he believes are unfounded. Guess what - that's nothing new. Criminal defendants don't get reimbursed for the money they spend defending themselves when they are found not guilty.

The fact that he's even complaining about the money he spent should be insulting. That pales in comparison to losing 25 years of your life. While Michael Morton was in prison, Ken Anderson was working - and accumulating those savings. He got to go home to his family every evening, and see his kids grow. Michael Morton got to watch life through prison bars.

Ken Anderson wants everyone to believe this was an anomaly - that this was the only innocent person he ever convicted. He wants the benefit of the doubt. How many defendants do you think he gave the benefit of the doubt? Prosecutors have a saying they love to use - the best predictor of the future is past behavior. In other words - once a criminal, always a criminal. Prosecutors routinely look at criminal histories - and if a defendant has committed the same type of crime before, they feel a lot better about their case. If we use the same logic on Mr. Anderson, then we have to assume this same pattern of conduct was repeated hundreds of times over the course of his tenure as District Attorney.

I'm sure I'm not the only criminal defense who is amused at seeing the same techniques he used for years as a prosecutor being used against him. You would hope that this would generate a new respect for what criminal defendants experience - but I doubt it.

Whatever the outcome, it appears clear that Mr. Anderson didn't win any friends last week. And certainly didn't help his case.

Is this justice - or a recipe for disaster?

Walter Reaves — Fri, 25 Jan 2013 19:10:35 -0600

I'm still trying to comprehend the information Paul Kennedy shared about the number of court appointments some lawyers are taking/receiving. I would have guessed the lawyers who were milking the system were taking a couple hundred appointments a year. Boy was I wrong - the leading lawyer took 920 appointments in one year. That number included 278 felonies. That is a truly outstanding - and obscene number.

There was another lawyer with 894, one with 748, and a couple of lawyers who apparently got shafted - with only 500 appointments. Does anyone really think that's justice? That those defendants are receiving competent representation?

What can you do with that many cases? My guess is not much. You probably have time to talk to the prosecutor and get the plea offer. Maybe you even negotiate some - although I doubt it. You then go talk to your client and convince/coerce them to take it. And then go to the judge and get sentenced. Nice and sweet - can probably get it all done in a morning.

You can't have time to investigate and find out your client's full story. Nor can you have time to identify defenses, and file pre-trial motions. You sure don't have time to take the case to trial - my guess is none of those lawyers have tried a case in awhile. You know the prosecutor's know that - so what incentive do they have to make their best offer.

Years ago I served on the State Bar committee that developed standards and guidelines, which eventually led to the Fair defense act. The goal was to do away with this practice - and ensure that every defendant received competent representation. Clearly that didn't work - and frankly everyone predicted Harris County would be a problem.

There certainly isn't a shortage of lawyers in Harris County - and I'm sure there are a lot of young lawyers who would love some court appointments. So why not spread them around? My guess is money - these lawyers do it cheap. Or maybe they have some arrangement with the judges. There's another problem with that - other lawyers might investigate cases, litigate them and take some to trial - in other slow down the system.

This system is a disgrace and needs to be fixed.

The system works - if you're really lucky

Walter Reaves — Fri, 25 Jan 2013 16:12:34 -0600

I've been involved in several innocence cases, and have been fortunate enough to be successful. I've also had a lot more where I have not been so lucky - people who I have no doubt are innocence, but cannot prove that in a court. I say lucky, because that is what you have to be. It is not enough to be innocent - you have to catch a lot of breaks.

Jeff Gamso pointed this out in the course of discussing a recently published book by Kirk Bloodsworth. Mr. Bloodsworth is somewhat famous among lawyers who handle innocence cases. He got off of death row through DNA testing, and then spent 9 more years trying to get the State to test the evidence and prove who actually committed the offense.

The instructive part of the story is what has to go right in a case like this. As Jeff writes:

What Kirk Bloodsworth needed was for random chance to go his way. Someone in a lab needed to find a spot of semen in a spot that FBI analysts specifically declared did not exist. Ultimately it did. He needed the DNA to not be degraded. He needed there to be enough for a retest. He needed a whole shitload of stuff to go right. Not right because the law would make it go right or because hard work would make it go right or because really good lawyers would make it go right. To go right because by chance it did.

Mr. Bloodsworth also recognizes that one more thing is necessary - he had to have a lawyer who was interested in his case - and who wouldn't give up. Unfortunately, there are far too lawyers like that. Far too many lawyers are interested only in how much money they can make. If a client doesn't have money, they aren't going to even look at it. You don't make money on cases like this - you actually lose money - a lot. They are extremely time consuming, and require resources that many lawyers pay for out of their pocket. They do it because they can't look the other away - they see an injustice and feel compelled to fix it. In short, the represent the finest traditions of the bar.

Over the last several years there has been an increase in the number of innocence projects - which offer the only meaningful chance for relief most defendants. Unfortunately, there are too few of them, and they are always underfunded. In short, they are overwhelmed - and have to allocate their resources to have the most impact. - which often means rejecting cases that are going to require a lot of time and money, and where innocence may not be so clear.

We need to do better to correct mistakes when they are made. Relief should never be left to random chance. The entire justice system bears some responsibility for this - and its time for everyone to step up to the plate.

No jurisdiction - so what?

Walter Reaves — Fri, 18 Jan 2013 20:22:39 -0600

The Court of Criminals last week showed just how serious it is about enforcing the prohibition against filing subsequent writs. The defendant in Ex Parte Sledge was placed on deferred adjudication. When he committed 2 new offenses a motion to adjudicate was filed. The court ultimately adjudicated guilt, and sentenced him to five years in prison.

Mr. Sledge didn't appeal the decision, but later filed a writ of habeas claiming there was insufficient evidence to support his conviction. That was denied; the then filed a second writ alleging the trial court did not have jurisdiction to adjudicate his guilt. That claim was based on the failure to issue a capias for his arrest until after the period of supervision had expired. He was right about that, since the Court had previously held that a court loses jurisdiction if a capias is not issued until after the probationary term expires.

You might think the decision should be fairly simple. If the court didn't have jurisdiction, any action they took was void. That makes sense, and it was what the Court has held numerous times. But as you might expect, the Court found a way around that - which was Article 11.07, Section 4 of the Texas Code of Criminal Procedure.

There is no doubt that if Mr. Sledge had raised this claim in his first writ he would be out of prison. (of course if his lawyer had been awake he never would have been in prison in the first place) But he didn't, so the court applied Section 4, which basically requires an applicant to show his claim is based on new facts, new law, or actual innocence. The court ultimately held he couldn't establish any of those - so he loses.

I don't have any problem with the Court's interpretation of Section 4; the claim wasn't based on new facts - they were the same facts that existed when the first application was filed. It also wasn't based on new law - that hadn't changed either. Actual innocence might be little closer, but the claim has nothing to with the merits of the motion to adjudicate.

The problem I have is with the treatment of jurisdiction. You either have it or you don't. The Court has already said you can't waive it - so how can you waive it in post-conviction proceedings. The Court basically carves out an exception, without much of a reason other than you should have caught it earlier.

So in this case it really didn't make a difference that the court lacked jurisdiction. The defendant was sentenced to prison by a court without the authority to do so - and has to stay there.

DNA database is a one way street

Walter Reaves — Fri, 04 Jan 2013 20:35:37 -0600

Over the last several years the nationwide DNA database has expanded exponentially, and has been credited with solving a number of "cold" cases. Typically the database is used to obtain a match - leading to a conviction. What happens though when a defendant wants access to the database to prove someone else committed the crime?

If you know anything about the criminal justice system you can guess the answer - you're out of luck. The New York Times recently had a story about a defendant in West Virginia which illustrates the problem. Joseph Buffey was a 19 year old young man who confessed and plead guilty to raping an 83 year old woman. After claiming for years that he had been forced to plead guilty he was able to have DNA evidence tested - which excluded him. He then wanted to take the next step - trying to prove who the actual rapist was.

It's a simple enough process - you submit the DNA test results to the database, and see if there is a match. The problem is a criminal defendant cannot make that request. So Mr. Buffey's lawyers did what you would expect, and asked the judge to order it - which he eventually did over the State's objection. After going back and forth, the State finally backed down, and the results were submitted.

As the Times story shows, this a problem across the country. There really isn't a good reason for not allowing defendants access to the database. The State should be interested in achieving the correct result - even it means upsetting a conviction. If the wrong person is convicted, someone got away with it - and they probably committed other crimes.

It's time to allow defendants access to the DNA database, but other databases as well. The same issue exists with fingerprints - unidentified prints may be matched, but you will never know unless they are run. If the goal is to get it right, then all available resources should be utilized.

The blind leading the blind - Is that the current state of Forensic Science

Walter Reaves — Wed, 02 Jan 2013 08:30:01 -0600

Back in July the FBI announced a review of cases handled by the units hair and fiber unit. They estimated the review would encompass approximately 21,000. While that's a start, the Washington Post has pointed out ot may only be the tip of the iceberg.

The article points out a problem that isn't often talked about - not only did the forensic and hair unit examine cases, they also trained other examiners. According to the post story, the examiners in that unit also trained some 600 - 1,000 state and local examiners - who are presumably also employing the same flawed techniques they were taught.

Radley Balko characterizes this as a systemic issue, which cannot be addressed on a case by case basis. While I agree with that statement, we also must come up with a better way to identify those individuals who have been convicted by bad forensics, and then provide an effective remedy. So far, no one is making any attempt to do that. Ideally it would by the FBI - but that's probably too much to ask given their reluctance to acknowledge any problems. That leaves the problem with State and local agencies, and individual groups, such as innocence projects.

While the problem here is with hair and fiber analysis, the problem is much bigger. You only need to look at arson cases to see how flawed forensics can be institutionalized, and passed down from one group to another. For years the same unscientific techniques were taught and passed on - and probably are still being taught and passed on.

I don't have an answer, but I think we have to start with providing a realistic process for obtaining relief to those who have been convicted on fault evidence. Perhaps that means re-examining every case where forensics played a significant part in the conviction. While that task would be enormous, is it really too much to ask of a system that prides itself on fairness.

Time to Accept that Expert testimony on eyewitness ID's is admissible

Walter Reaves — Thu, 06 Dec 2012 09:17:48 -0600

As evidence about the unreliability of eyewitness identifications has emerged, the courts have reluctantly started admitting expert testimony concerning the reliability of such identifications. The Court of Criminal Appeals last year approved the use of such testimony, even where the expert was not able to testify that the identification in that particular case was suspect. The truth is no one can provide that opinion – at least legitimately. The most any expert can do is identify the problems that contribute to erroneous eyewitness identifications, and discuss those that are present in the case.

That was the situation in a case the court of criminal appeals decided yesterday. The defendant attempted to produce testimony from a forensics psychologist concerning weapon focus. In the judge asked him whether he could testify that that factor affected the identification in the case, he could only testify that it was a possibility. The court excluded the testimony, finding the testimony did not fit the case.

The Court of Criminal Appeals reversed, basically finding that it had already addressed and resolved the issue. The expert testified as any expert would, on such testimony was admissible.

I don't know how helpful such testimony is, but it certainly should not be overlooked. Jurors generally want to believe crime victims, especially those who have been the victim of violent crime. Unfortunately, those are the cases were identifications are the least reliable. Anything on defendant can do to convince the jury of that must be done.

Hopefully the issue is settled. The question will now be how to use that testimony, and make it effective.

Relief granted in Shaken Baby Case

Walter Reaves — Wed, 05 Dec 2012 08:24:29 -0600

The Court of Criminal Appeals issued a significant today in a case that has been awaiting a decision for several years. Cathy Lynn Henderson was convicted of capital murder for killing a child she was watching. The child had a fracture of the skull, and the medical testimony was that it would have required the force equivalent to falling from a 4 story building - in other words, the child couldn't have accidentally fallen and sustained that injury.

That issue has been studied over the last few years, and rejected by most experts. To his credit the medical examiner changed his position, and gave an affidavit that in light of the current state of scientific knowledge he would have to change the cause of death to undetermined, and could not rule accident. A lengthy hearing was conducted, at which a number of different experts testified. At the conclusion of the hearing, the trial court recommended that relief be granted.

In it's decision, the Court of Criminal Appeals agreed with the trial court, and sent the case back for a new trial.

While this a significant win, it's impact is hard to predict. The actual opinion merely adopted the trial court's recommendation to grant relief, without much discussion. That resulted in three separate concurring opinion, and two dissenting opinions. Justice Alcala notes that it is a open question whether the decision - whatever it may be - will apply in non-death penalty case, or whether its simply a result of the heightened reliability required for death penalty cases. Justice Cochran notes that they have not yet held that a conviction based on scientific evidence that is later found to be unreliable violates due process.

This is still an issue that must be resolved by the Courts - or the legislature. As long as science is used to obtain convictions, there must be a remedy when the science changes. While this case does not establish that remedy its a good start.

Congrats to all those who worked so hard on this case - for so many years.

Does Innocence Matter on Appeal?

Walter Reaves — Sat, 17 Nov 2012 16:46:06 -0600

One of the hardest things to explain to clients is that an appeal is not about guilt or innocence - in fact, it is rarely an issue. I don't know how many times I have heard people say "if they will just look at the case they'll see he (she) is innocent". That statement couldn't be farther from the truth. The appeal court does not look for innocence - they assume you are guilty, since that is what the jury decided.

There are rare case though where innocence is clear - or at least there are questions. The case of Megan Winfrey is one of those. Ms. Winfrey and her father - Richard Winfrey, Sr. - were convicted of murdering a high school janitor. A big part of the case was dog scent evidence - which thankfully has been revealed for what is - a bunch of crap. The Texas Court of Criminal Appeals agreed with that assessment last year, and reversed Mr. Winfrey's conviction. The State refused to concede and retried Mr. Winfrey - again using dog scent evidence. This time the lawyers did a great job of discrediting the evidence and the jury let the State know what it thought about it - acquitting Mr. Winfrey in thirteen minutes.

You might think that would be good news for Ms. Winfrey - but you would be wrong. Her case was argued before the same court - the Texas Court of Criminal Appeals - in April. Six months later there is still no decision - and she is still in jail.

So why s that? I certainly don't know the answer, but I do know how Court's operate. Just because they believe the State used junk science - which they would be hard pressed to reverse court and find otherwise - doesn't mean the conviction is reversed. They still have to decide whether that made a difference - i.e. was it harmless error. The State claims her "suspicious behavior" supports the guilty verdict; always a popular argument when you don't have any real facts.

Whatever the reason, it's hard to ignore the jury's finding - if her father didn't do it, is it reasonable to think she did? Unfortunately, "reasonable" isn't usually a consideration on appeal. Let's hope this time it is - and they reverse her conviction soon.

Innocence commission comes through

Walter Reaves — Sat, 06 Oct 2012 15:50:33 -0600

Willie Grimes was released from prison on Friday after serving 24 years for a rape he didn't commit. His release followed a finding by the Innocence Commission in April recommending release. www.charlotteobserver.com/2012/10/05/3579327/man-exonerated-after-24-years.html

Grimes' case is similar to many others - there was clearly evidence at the time of trial that suggested he was innocence. There were several witnesses who testified he was somewhere else when the crime was committed. The State relied on hair found at the scene which the State's expert came from a black man - although they didn't try to establish it belonged to Grimes. A big part of his exoneration was based on a fingerprint found a banana a peel - a fingerprint analyst testified that the print matched another man who had a lengthy criminal record, including assaulting a female.

Grimes always maintained his innocence. He refused to accept a plea, and remained in prison longer than necessary because he refused to participate in programs where he would have to acknowledged his innocence. He was finally released on parole, but only after his lawyer convinced him to agree to register as a sex offender.

In my opinion this is one example where an innocence commission operated as is it was meant to. They recommended relief in case where the defendant may not have been able to prevail in court. While the evidence was compelling, I don't think it would enough to establish actual innocence in Texas.

Congratulations to Willie Grimes, and all those who worked to free him. He deserves to celebrate.

There's an app for that..

Walter Reaves — Thu, 05 Jul 2012 14:27:48 -0600

By now we have become used to hearing "there's an app for that". And despite our resistance, many of us have come to rely on "apps" for a variety of things. For instance, our state criminal defense lawyer's association (TCDLA) has an app which basically allows you to carry an entire criminal law library with you on your phone or ipad. (BTW - if you practice in Texas and aren't a member this ought to be reason enough to join).

So with everything else ought I wasn't too surprised to learn that the ACLU in New Jersey has created an app to allow you to secretly record your encounter with the police. What a great idea! I cannot tell you many times I have reviewed police car videos that conveniently stopped working at critical points, or didn't work at all. Some officers have become very skilled at making sure they are just outside of camera range during DWI stops so you cannot see what they are doing. Now you may have some way to prove what you are saying - because as everyone knows if its your word against that of a police officer you are going to lose.

I was around when the police started using video, and I admit I was resistant at first. I initially viewed it as one more piece of incriminating evidence we have to deal with. It certainly can be that - but I also soon learned that it could also be proof of what the client was saying. It also can be proof that the officer embellished the report. I don't know whether they forget what actually happened, or they forget it was recorded, but it never ceases how often they will say something happened - or didn't happen - when the video is to the contrary. It's no wonder that the police now are starting to take offense to people videotaping them.

I don't know how effective this app is going to be. My guess is most people would be so nervous when they are pulled over that they forget all about it. Or the people who could use it, won't have it. It certainly can't hurt to have it though. After all, if you think you will never be suspected or accused of doing something wrong - think again.

What happens when you have good prosecutors

Walter Reaves — Thu, 28 Jun 2012 08:50:52 -0600

Convicting the innocent is like most things - everyone believes it can happen, but no one believes it can happen in their case. That is especially true for prosecutors in the United States - even when confronted with overwhelming evidence of innocence they often continue to fight and try to uphold the convictions. The reasons for that are varied. Perhaps they don't want to acknowledge they are are responsible for taking away someone's freedom and liberty. That assumes they really care - which I don't think some of them do. Perhaps that is something you have to develop to send parents, spouses, and children to prison day in and day out.

I think a more fundamental problem is the adversarial system we are all trained in. You are taught from the start of law school that you are an advocate for client. That means you argue for their interests no matter what your particular feelings about the case may be. For the justice system to exist, that adversarial process has to function. When it comes to prosecutors though they have to strike a balance - they represent the state, but they also are charged with seeing that justice is done. Too often they lose sight of the latter.

Instead of doing everything they can to hold onto a conviction, its nice to see a prosecutor step up and admit a mistake has been made. Which is exactly exactly what Allison Wheeler did to Brenda Waudby. Ms. Waudby had been convicted of killing her daughter. The conviction was based on medical testimony that was subsequently discredited. As it turned out, the injuries were inflicted when a baby sitter had the child, and not Ms. Waudby. In apologizing to Ms. Waubdy the prosecutor said:

“Her daughter was a victim of a homicide,”
“Ms Waudby should have been treated like a grieving parent and she was not. We’re deeply and sincerely sorry.”

If you haven't heard of this case it might be because its in Australia. I don't know how the Australian justice system operates, and whether they have the same problems we do. If all the prosecutors are like Ms. Wheeler though they are way ahead of us. To her credit she recognized something that few prosecutors do - the defendant is a person also. Its a sad fact that in many cases a parent or a spouse is not allowed to grieve - they become suspects and not only have to deal with their loss, but also the stress of losing their freedom. Unless you've been in that situation, I cannot imagine what that's like. You can never give them their life back, but an apology is certainly a good start.

Can you drive on the shoulder?

Walter Reaves — Sat, 12 May 2012 15:26:15 -0600

For the second week in a row the Court of Criminal Appeals reversed a driving while intoxication conviction based on a bad traffic stop. The case is Lothrop v. State. Mr. Lothrop was behind a car that slowed down at a railroad crossing, and he passed on the shoulder. He was stopped for driving on an improved shoulder, in violation of Transportation Code 545.058, and ultimately arrested for driving while intoxicated.

The Transportation Code allows a driver to pass on the improved shoulder in certain situations if it is "necessary and may be done safely". The statute lists several situations where a driver can pass on the shoulder, which includes passing another vehicle that has slowed on the main roadway. The Court of Appeals treated the statute as providing a defense, which must be established by a defendant. The Court held the defendant must prove the manuever was done safely, and out of necessity, and in one of the enumerated situations.

The Court of Criminal Appeals held the lower court improperly limited the definition of necessary to "absolutely necessary", which thwarted legislative intent. The plain language of the statute suggests passing on the shoulder is authorized, even when it is not necessary to avoid a collision. The court also held that driving on the improved shoulder is not prima facie proof of an offense; in other words, just because you are driving on the shoulder doesn't mean you have committed an offense.

In this case the officer saw the car in front of Mr. Lothrop slow down he passed, and therefore there was no reason to stop him.

Sometimes it appears that the police have almost unlimited authority to stop motorists, and they do have a tremendous amount of discretion. However, as this case shows that discretion is not absolute.