Waco Criminal Law Blog

Beware the prosecutor who reminds you their job is to "see justice is done"

walterreaves@att.net (Walter Reaves) — Wed, 11 Nov 2009 12:40:10 -0600

I attended the Senate hearing yesterday and listened to the new chairman of Forensic Science Commission - John Bradley - lay out his plans for the commission. Not surprisingly, the representatives wanted answers to two questions; when was the commission going to issue a report on Willingham, and was the late replacement of the commission chair designed to derail the investigation and work that already been done. Neither of those questions was definitely answered, but then what can you expect in a political arena.

Sen. Whitmire - chairman of the committee asked Mr. Bradley if his service as a prosecutor created a possible conflict. His reply was that he was probably more qualified than a defense lawyer, because he had a statutory obligation to "see that justice is done." He also described himself as sort of a one man innocence project because of the number of cases he had dismissed before they were ever filed.

I've heard for years the argument that prosecutors have an obligation to see that justice is done. No doubt that is the law. The problem is how it is interpreted, and carried out. We know that too often that obligation is not honored. Is a prosecutor who hides evidence seeking justice? What about a prosecutor who has doubts about a case, but decides to "leave it to the jury"?

Most of the time the statement is made to divert someone away from the facts. The statement is really nothing more than "you can trust me to do it right". In other words, I wouldn't be doing this unless the guy was really guilty.

There's another problem with this argument. It creates an "us against them" mentality. Mr. Bradley followed up with the statement that defense lawyer's only have an obligation to their client. The insinuation is that they will do anything to get them off - ethical or not. The underlying argument is that they are on the side of truth and justice; the defense lawyer is on the other side, and you don't need to pay any attention to what they say.

As with any right in the criminal justice system, it is only as strong as the person enforcing it. It would be nice if all prosecutors took that obligation seriously. There is no doubt that some do. Most of those prosecutors never have to remind people of their obligation - no one has any doubt because they carry it on a daily basis. If you have to remind people, you probably aren't doing too good of a job at carrying it out.

I'll wait and see how Mr. Bradley carries out his job as commission chairman. So far he hasn't done anything and he can't be held accountable for the manner in which he was appointed. I'll keep an open mind, but so far I'm not too hopeful.

How long does it take to become an expert?

walterreaves@att.net (Walter Reaves) — Fri, 06 Nov 2009 22:32:33 -0600

ne of the blogs I enjoy reading is Zen Habits. I've picked up some great tips organization, productivity and keeping things in perspective. Sometimes there is also information that specifically apply to lawyers. recently he wrote about expertise, and how long it takes to achieve expert status - his answer was at least 6 years.

I'm sure that's not what new lawyers want to hear; they come out with a law degree, and consider themselves experts. Many aren't shy about telling you about their expertise; just google criminal lawyer or any variation thereof. There's no criteria for when you can declare yourself an expert - its up to each lawyer to decide themselves. Unfortunately, most of those who consider themselves experts aren't; and those who don't consider themselves experts really are.

I agree to a point with Zen Habits - you can't become an expert in anything less than 6 years. However, just because you've reached that mark doesn't mean you are instantly an expert. I wish that were the case - I've got 27+ years under my belt. That means I've been around, but doesn't make me an expert. I like to think I'm really good at certain things - but certainly not everything that relates to criminal law.

When I first started I had an older lawyer tell me it took at least 5 years to figure out what you are doing and get a practice started. I thought he was crazy, but he was absolutely right. I've seen it time and time again, and finally started giving the same advice.

Expertise requires more than knowledge. It also requires experience. More importantly, it involves perspective. Not only do you need to know how to do something, you need to know when to do it. Contrary to what most people think (especially defendants and new lawyers) practicing law requires more than knowledge. Good lawyers have intangibles that others don't possess. One of those intangibles is a passion for justice and a desire to ensure their clients are treated fairly; many times those desires conflict with economics. In other words, if your only interest is in making money, I don't think you are ever going to become an expert.

The internet is a great thing - but it can't make you an expert without experience and desire. you still need to put in the time. sorry - there is no short cut.

Are we safer by gathering up sex offenders on Halloween?

walterreaves@att.net (Walter Reaves) — Sat, 31 Oct 2009 10:13:10 -0600

It's Halloween, which means probation offices across the country will be gathering up sex offenders and hosting a special kind of "party". I'm not sure who was first to come up with idea, but its clear that it caught on quickly. That's not surprising, since anything that punishes sex offenders is always going to popular. What is surprising is that it was not a reaction to an acual problem - merely a perceived problem.

The thinking goes that sex offenders will prey on children when they come to their house for trick or treating. I'm not aware of that ever happening, and I have a hard time understanding how it could. I'm reasonably sure most parents are like me, and took their kids trick or treating. Does anyone ever actually let their kid go iinside someone's house? If they did, would you let them stay more than 30 seconds? Of course you wouldn't - if there is ever a time when parents are watching over their children, its during halloween.

The reality is that most sexual offenses against chldren are not spontaneous and randon; in other words, they don't see a kid and molest them. That does happen occassionally, but its more common that sex offenders groom their victims over extended periods of time. It's also a sad fact that most sex offenses against children are committed by people they know, and have some relationship with - that's how they are able to keep it hidden.

Scott Greenfiled has a timely post on assumptions and common sense. As he points out, most people make decisions on facts they assume - and not actually know. As we all recognize - most of the time reluctantly - assumptions are often not based on facts. I think this action is one of those assumptions that is not based on actual facts. Has a child ever been assaulted on Halloween by a sex offender?

We need to protect our children (and for me now grandchildren), but we need to do things that actually make them safer. I'm not convinced this does anything but create more work for probation officers. Wouldn't they rather be with their children, instead of baby sitting sex offenders.

Why do you need a hearing to confirm guilt?

walterreaves@att.net (Walter Reaves) — Fri, 30 Oct 2009 12:31:59 -0600

I saw a story in the Dallas Morning News this week about two men whose guilt was confirmed following post-conviction DNA testing. What caught my attention was that a hearing was being held to do this.

It's not unusual for DNA tests to come back and confirm a defendnt's guilt. For whatever reason, guilty defendants still insist on DNA tests. I wrote about that some time ago, and still don't have a a good answer. Under the Texas Statute, a defendant can request testing in certain situations. The Statute doesn't provide a remedy - it just authorizes the judge to order a test. If the test comes back in favor of the defendant, you either have to file a writ of habeas corpus or seek a pardon from the governor. The Statute does give the court authority to release a defendant on bond while you are waiting for the court or governor to decide. That is usually done after a hearing.

I don't understand why you need a hearing if guilt is confirmed. Are there different levels of guilt, and the judge is going to say they are more guilty than they were before?

To hold a hearing you need a defendant, which generally means you have to bring them back from prison. Obviously that takes manpower, both for transportation and processing. Most times courts don't want to bring defendants unless they really need to. I'm sure the local sheriff is not happy about increasing the jail population. Apparently this important enough though to devote the resources, as well the court's time.

The obvious answer to the question is that it is all about politics. Dallas County has led the State and the Country in exonnerations. I guess the District Attorney wants everyone to know they are not opening the jail doors, and still have an interest in prosecuting people. I'm a big fan of Craig Watkins and the work he has done in ensuring justice for those who have been wrongly convicted. That doesn't mean he can't make mistakes though, and I think this is one.

I can only hope the defendant knows before he goes to court what the results of his test are.

What will it take to change public opinion on the death penalty?

walterreaves@att.net (Walter Reaves) — Sun, 25 Oct 2009 09:59:47 -0600

I recently attended the 10th annual march against the death penalty in Austin. I'm not big on marches and rallies - i think that was only the second one I've been to in my life. I went because I was invited to talk about the case of Cameron Todd Willingham. He was the centerpiece of the rally, and his picture was everywhere. Everyone there is convinced that this is the case that will change public opinion on the death penalty - I'm not convinced.

I've given this a lot of thought, and finally realized that this argument - that people's minds will change if they are convinced an innocent person was executed - involves an underlying assumption. The assumption is that general public will really care. I don't mean care in the sense that they believe it was a terrible thing, but care in the sense that it personally effects them. You only have to look at the most recent public opinion polls to know this is true - the majority of people already believe an innocent person has been executed, but they still support the death penalty.

I think the problem is that we have lost the sense that human life is sacred. The majority of anti-death penalty supporters are just as guilty as everyone else. My sense is that most in the anti-death penalty camp don't believe human life is sacred from the moment of conception. On the other hand, the majority in the anti-abortion camp have no problem with the death penalty, and often times are its most ardent supporters.

Almost 30 years ago (1968 to be exact), Pope John Paul II authored an encyclical - In Humanae Vitae. In that document he made a number of predictions, many of which have been proven to be true. Pope John Paul II also coined the phrase "culture of death". His theory was that we live in a culture of death because we no longer value human life - which is a reflection of the divine.

I think he was right on. You don't have to be Catholic - or even religious - to recognize the problem. In my opinion, beliefs about the death penalty are not going to change until peoples beliefs about the sacredness life change. I'm not knocking the anti-death penalty crowds - I admire their passion, which is something missing from far too many people. I simply believe that is going to take more than proving an innocent person was executed to cause a change in attitudes.

The first rule of lawyering - do no harm to your client

walterreaves@att.net (Walter Reaves) — Sat, 17 Oct 2009 11:00:47 -0600

The coverage of Cameron Willingham continues to new issues daily. It's hard to choose what to comment on - I could easily spend the whole day setting out my thoughts (not to mention answering questions from reporters. BTW if any reporters are reading this, my secretary won't give you any inside information, or my "cell phone number - does that ever work) The decision was made easy by Todd's trial attorney going on CNN - sounding more like a prosecutor than a defense lawyer.

Mark Bennett addressed the in interview in his usual insightful manner, and tried to answer the question of whether he violated the bar's ethics rules. I don't have an answer for that, but I am sure that his conduct is not what people expect from their lawyers - and they shouldn't expect. You don't expect your lawyer to bad mouth you, even if you didn't get along with them. Although I don't think its in the rules, as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd's reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

The hippocratic oath for doctors says to "never do harm" to thier patients. As far as I know lawyers don't have similar oath - but certainly its implied. Clients expect their lawyers to protect them - why else would you hire a lawyer. Unfortunately, lawyers put their own interests above those of their clients.

You might say you have no duty to your client after they die. To me, that's a cop out. I consider Todd my client. and will do whatever can to clear his name. I have the same feeling for any client. I've represented some pretty despicable people, and I would never bad mouth them in public. I listened to mother when she said if you can't something good about someone, don't say anything.

Scott Greenfield asked why he would make those statements. He can't answer that question, and I don't think anyone can come up with a logical explanation. No one is suggesting he is why his client was convicted and executed. We all didn't know then what we know now about arson science. It would be easy enough to say I did the best I could - if I had the reports that are out now, the result may have been different. No one could argue with that position.

In my opinion he has created questions about his representation. It's one thing to think your client is guilty - in truth, most of them are. They still has the burden to prove guilt. Mr. Martin's comments appear to show more - a dislike, maybe even hatred of his client. Nobody says you have to like your clients; but it shouldn't affect your representation. You have to wonder now if his feelings effected his representation. He's basically become more of an advocate for the prosecution than the State.

Jeff Gamso had one of the more insightful insights - I wish I could have said it as well:

And then there's the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That's not the way you attract clients. For the glory of national television? Some people just can't resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn't thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client's.

He's right that you don't need to believe your client innocent to provide a stellar defense. As I said, innocence is, ultimately, irrelevant to the work we do. Proclamations of guilt are something else.

It really is inexcusable. Really. Inexcusable.

I don't know if Mr. Martin is still practicing law; I certainly hope he's not practicing criminal law. If I were potential client, I would certainly question how dedicated he was going to be.

___________________

Thanks for Jeff Gamso for pointing me to Rants of Public Defender - which also has a great comment on Mr. Martin.

Why shouldn't public officials be personally liable?

walterreaves@att.net (Walter Reaves) — Sun, 11 Oct 2009 09:40:09 -0600

Thanks to Scott Benson at Grits for Breakfast for letting us know about the decision holding the head of the Texas Parole Board - Rissie Owens - personally liable for violating an inmates rights. The case involved an inmate who was serving time for a non-sexual offense. As the parole board is fond of doing, they looked through his record and decided he was a sex offender, and imposed sex offender conditions of parole. They did so without a hearing, and without letting him review the evidence they used to make that decision.

The fact that the board violated his rights wouldn't be enough to impose personal liability though. The problem was that the same judge - Sam Sparks - had previously held (twice), that such hearing were necessary, and ordered the board to provide them. Owens defied those orders, apparently on the advice of her lawyer. Few people have the lack of sense to tell a federal judge to F'off, but she and her legal counsel did. They shouldn't be surprised that the judge didn't appreciate it.

Imposing personal liability on a public official is extremely rare. It's not enough to show they violated they law - you usually have to show something more. It shouldn't be that way though. The doctrine of immunity was meant to protect public officials from frivolous suits that were based on nothing more than policy disagreements, or errors in judgment. It shouldn't protect from them from knowingly violating the law. If everyone else is accountable, why shouldnt they be?

I wonder why the lawyer wasn't sanctioned - admittedly he told his client to ignore the judge. He's not the first lawyer to disagree with a judge's decision; for many of us its an almost daily occurrence. There is a remedy though - which is the appellate system. I assume they have appealed those decisions; if they worried about the impact on other cases they could have tried to get an order putting everything on hold. In other words, there are things they could do short of defying the judge.

What happens is the parole board appeals the decisions, and they are upheld. Are they going to ignore that also?

The problem with immunity is that can create an attitude of arrogance and absolute power. Some Officials equate immunity with wisdom - they lose sight of the fact that they aren't being protected because they always right. Take the wrong type of person, and its easy to imagine the abuses that can follow. It's not a new thought - we have long been told that "absolute power corrupts absolutely". Nowhere is that more apparent than in the criminal justice system.

Any time you talk about crime, people are willing to look the other way. After, we are talking about criminals right? They deserve what they get. That attitude exists until you or someone in your family is in trouble. Then you wonder why you are being treated so unfairly. Don't you know Ms. Owens expects a full hearing before the judge imposes sanctions on her. The same type of hearing she and the board are routinely denying inmates.

Earlier this week we saw an inmate - Richard Miles - released after serving 14 years for a murder he probably didn't commit. He was released because the police didn't disclose evidence that someone else claimed to have committed the offense. Prosecutors have a duty to disclose favorable evidence, and we have recently seen a number of case where they failed to do so. While that can be the subject of separate post, there are seldom consequences to failing to disclose evidence. A court can find the evidence wasn't material (i.e. important) and uphold the conviction. In short, there are seldom consequences. Would the obligation to disclose evidence be taken more seriously if there were real consequences to not doing so?

Whether or not the award is upheld, it serves a purpose. There are limits, even on public officials. May if liability was imposed more often they would think twice before taken actions they know are either unlawful or at least questionable.

Aggravated perjury for swearing you are innocent

walterreaves@att.net (Walter Reaves) — Wed, 07 Oct 2009 17:36:48 -0600

Williamson Count District Attorney John Bradley may have come up with a solution for all these pesky little innocence claims. Charge them with aggravated perjury for falsely swearing they were guilty when they entered their plea.

Markum Peavey was sentenced to 55 years in 2007 for driving while intoxicated. It is not clear whether or not there was a plea agreement, but Peavey did plead guilty. He also pled guilty to evading arrest, and was sentenced to 25 years for that offense. Peavey then filed an application for writ of habeas corpus; in his writ, he claimed he was innocent. Writs of habeas corpus must be sworn to, so Peavey swore to the statement that he was innocent. Clearly, that was not consistent with his earlier plea of guilty. So not being content with 55 years, and apparently outraged that he would challenge his conviction, Williamson County indicted for aggravated perjury. Earlier this week Peavey was convicted and sentenced to 30 years; that sentence was stacked onto the prior sentence, so Peavey basically now has an 85 year sentence.

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing. It's probably worth noting that those motions also have to be sworn to.

Maybe Mr. Bradly has hit on a way to save the state some money. A defendant is exonerated through DNA evidence, and gets a pardon from the government. The State then comes in and indicts him for aggravated perjury if he plead guilty. If they get a conviction, then does that prevent him from getting his compensation - which was recently raised by the way? Maybe I shouldn't even say that - its just crazy enough that the governor might think its a really good idea.

As a side, if the name John Bradley sounds familiar, it should. That is the new chairman of the Texas Forensic Commission - the chairman who canceled the meeting where Dr. Craig Beyler was going to discuss his report on Cameron Todd Willingham. I'll let you draw your own conclusions.

What's next for the Forensic Commission?

walterreaves@att.net (Walter Reaves) — Tue, 06 Oct 2009 08:06:08 -0600

The Wednesday afternoon massacre is now history, and the question is what's next for the Texas Forensic Commission. I'm referring to Gov. Perry's decision on Wednesday to replace 3 members of the commission -which included the chairman - two days before they were scheduled to meet and discuss the findings of Dr. Craig Beyler. If you've been on a deserted island for awhile, Dr. Beyler was hired by the commission to review the cases of Cameron Willingham and Ernest Willis. He reached the same conclusion all the other experts had, which was that fire was not inentionally set. Of course if there was no arson, there was no crime. The problem of course is that Cameron Todd Willingham has already been executed. To make things worse, he was executed even though Gov. Perry was furnished with a report from another expert which suggested the fire was not intentionally set.

I've said before that I never had much faith that the forensic commission was going to accomplish anything useful. After all, its a political body, which Gov. Perry so emphatically emphasized by his recent actions. The question now is how the commission is going to deal with the case.

No matter what his public remarks may be (i.e. the "air quotes" around experts), I don't think Gov. Perry is stupid enough to believe that the facts are going to miraculously change. The case has already been reviewed by all the leading experts, and they all reached the same conclusion. For anyone to contradict that now would be suspect to say the least. So I think you have to conclude that at a minimum the testimony that sent to Todd Willingham to his death was completely false.

Grits recently wrote about the question I have always had about this whole process; what can they really do. They aren't going to admit they killed an innocent person, and that is probably beyond the scope of their charge anyway. They could come up with guidelines for using expert testimony, and there certainly is room for improvement there. They could also make a statement about arson science, which I doubt that they will do because of the impact it could have on other cases. Grits suggests they will just take the case off the agenda, and I think he probably has a point.

Realistically, I don't think anyone expects the Governor's hand picked chairman to do anything that puts him in a bad light - especially in the middle of a contested election. There is no way to do anything on this case without doing that. By keeping the case on the agenda it also keeps it before the general public. And the more Gov. Perry tries to defend what he did the more he looks like an idiot. The best thing that could happen for him would be for the case to go away. While that might never happen, the next best thing for them would be to stop doing things to draw attention to it.

So my prediction is that the new chairman will take his time, and after the passage of sufficient amount ot time - to convince everyone they fully reviewed the matter - they will vote to remove the case from the commission's agenda. No doubt it will be accompanied by some statement that there are other more important matters for the commission to address that will have more of an impact on future cases. As for the latter statement, there is a lot of truth in it. The way courts handle forensic evidence does need to be overhauled.

I guess time will tell - I'm not holding my breath for anything to happen soon though.

I want my ball back now!

walterreaves@att.net (Walter Reaves) — Thu, 01 Oct 2009 07:40:29 -0600

My office got a call yesterday afternoon telling me the forensic commission meeting scheduled for Friday had been cancelled. Like most I was surprised. The meeting had been scheduled for months, an agenda had been set, and people had made travel arrangements. Later I found out why it was cancelled - Governor Perry decided to replace 3 of the members, including the chairman. The new chair was none other than the prosecution's "go to" guy - John Bradley.

I'm not sure whether Governor Perry thinks everyone is stupid, or he just doesn't care. You would think someone would have pointed out the ramifications of what he was doing. Last week he expressed his belief in Cameron Todd Willingham's guilt, and became the first person to question the expert's conclusions. Now, when Dr. Beyler is scheduled to come discuss the case with them he replaces the chairman, and has them cancel the meeting. Does he truly think anyone does not see this for what it is - an attempt to manipulate the outcome.

Surely he doesn't think this is going to fly under the radar. I can't remember a story that has generated as much coverage as Todd Willingham's. Every day there are several new stories or editorials across the country (and the world) talking about this. Everyone is following it - and now everyone knows what happened, because the cancellation of the meeting is sure to gain just as much press.

I said when they first started looking at this case that I didn't think anything was going to happen. It was a political commission, and I expected politics to influence the ultimate decision. I was as surprised as anyone when Dr. Beyler's report came out. The only person who may have been more surprised was Governor Perry. It obviously didn't turn out the way he wanted, and now he wants to change things. If you don't believe they have already discussed this case you have to believe that Governor Perry believes his new appointee is going to be an advocate of Todd Willingham's guilt.

One thing he did accomplish is to effectively negate the impact of the forensic commission. I don't see how anyone will take seriously anything they do from here on.

When I read the reports last night it reminded of the 6 year old who gets mad and takes his ball so they have to stop the game; if you aren't going to play the way I want we aren't going to play at all. I'm far from politically savvy, but you have to wonder if this may not turn out to be the signature on the Governor's death warrant for his campaign. After all, who wants a Governor who thows tantrums like a 6-year-old?

Do you have to like your client?

walterreaves@att.net (Walter Reaves) — Wed, 30 Sep 2009 07:31:19 -0600

As criminal defense lawyers we don't always represent the nicest of people. Some of them are difficult to get along, and want to fight you at every step. Many lack basic social skill - that is usually why they are in your office in the first place. Despite all that I generally like almost all of my clients; when you get to the bottom of their problem, it often is an otherwise good person who made a bad decision. Of course, getting to the bottom of things often takes time and effort.

The reason why I started thinking about this arose out of the Cameron Todd Willingham case. Except for a few people, most people who have looked at that case now believe he is innocent. One of those few people is one you would not expect - his trial lawyer. He has described him as a sociopath, and still believes he is guilty. It's pretty clear he didn't like him.

Todd's lawyer is not the first to think his client guilty - although his conduct may be to the extreme. The fact is, most defendants are guilty of something. The truly innocent client is rare, and one most lawyers dread getting because of the enormous burden you carry with you. Even if you know you're client is guilty, that doesn't mean you don't give them the best defense possible. The State already has a prosecutor aimed at convicting them, and they don't need any help. If you are not prepared to make the State do its job, and do everything you can for your client, you need to do something else; maybe something that doesn't involve people's futures.

Do you have to like your client to effectively represent them? Not necessarily, although its nice when you do. Good criminal defense lawyers are passionate about something else; you can call it justice, or something else, but they are passionate about making sure the system works, and the letter and spirit of the constitution is put into effect. That is why good lawyers can represent the people who society considers the most reprehensible.

Effectively representing someone means more than knowing the law though. You also have to know your client. There's a reason why they are in the position they are in, and you need to find it. In doing so, you usually discover they are not the person the State is portraying them to be. And yes, you might even start to like them.

It always find it odd that people who are fond of saying "hate the sin, love the sinner" don't apply that to criminal defendants. Society, with a lot of help from the prosecutor, is quick to jump all over something who does something bad. Their lawyer shouldn't do the same; they have a story to tell, and its the lawyer's job to tell. You don't have to like what they did - there's probably something wrong with you if you do - but you do have to find the reason why did it. Hopefully its something other than that they are sociopath.

So you don't have to like your client, but it helps if you do. After all, it is you and him (or her) against the government.

Does rehabilation work?

walterreaves@att.net (Walter Reaves) — Sun, 20 Sep 2009 16:09:42 -0600

Talk about rehabilitation and those "tough on crime" types label you a bleeding heart liberal. In thier view, rehabilation is not the primary goal of punishment. Instead, they want to send everyone away as long as possible. In thier view, lenghty prison sentences will deter others from committing similar crimes, and the offender will learn his lesson. Of course, the evidence over the 50 last years doesn't support that, but why let a little thing like logic get in the way.

The fact is, most people in prison are going to get out someday. Society has an interest in making sure they can make a succesful re-entry. Unfortunately, that reality is too often ignored. If you need evidence, you only need look where budgets are cut when times get tough - generally in rehabilitation services.

Some gains are being made, and Texas has started to see benefits from the push to come up with alternatives to revoking a person's probation. Other states are being forced to limit their prison populations.

All this is background for a story I recently came across that I found fascinating. Michael Eubanks spent 31 years in prison for capital murder, and was finally released on parole. Before his release, he participated in a pre-releas program based at a Christian prison in Sugarland. One of the courses was taught by former Harris County District Attorney Carol Vance. Never one to be described as soft on crime, Vance actually prosecuted Eubanks and tried to sentence him to death. You have to wonder what Eubanks thoughts when he walked in saw Vance.

The reaction was anything but expected. Eubanks said although at one time he hated Vance, he had come to admire him. As for Vance, he said he would trust Eubanks as a next door neighbor - huh! Maybe this rehabilation thing really can work.

Can it get any worse?

walterreaves@att.net (Walter Reaves) — Thu, 17 Sep 2009 08:02:07 -0600

Yesterday the Court of Criminal Appeals denied the writ of habeas for Michael Hood; he sought relief after he discovered the prosecutor and the judge had an ongoing affair, which included the time of trial. Hood obtained a recommendation from the current state trial judge that relief be granted. That is extremely difficult to obtain in any case, and most times is enough. The trial judge made several findings, including and finding that Hood's lawyer's exercised reasonable dilligence in bringing the claim. Not suprisingly, the judge and prosecutor hid the affair, and Hood's lawyer's did not find out until well after the trial; after his appeals had already been denied.

I didn’t have a lot of hope for Hood’s claims. The Texas court of criminal appeals does not exactly bend over backwards to help capital defendants; one might conclude they go out of their way to affirm the convictions. However, I would have never guessed the reason for denying the claim. I thought they would hold that Hood could not prove the affair affected his case in any way. The court did not address that issue, instead holding he had waited too long to bring the claim. The surprising thing about that finding is that the trial judge specifically found that his lawyers exercised reasonable diligence. After all, the judge and prosecutor were doing everything they could to keep anyone from finding out.

The Court of Criminal Appeals has been in the middle of the news for at least the last year. Almost everyone knows about the hearings to reprimand the presiding judge based on the closure of the clerk’s office, which prevented Michael Richards from obtaining a stay of execution. Their response was to blame the lawyers. No matter what the reason, it appears there is no doubt that Richards would have received a stay, and was prevented from doing so because the presiding judge ordered the clerk’s office to close at five o’clock. More recently, the court is in the middle of the controversy over the execution of Cameron Todd Willingham.

Scott Benson - i.e. Grits for Breakfast is not one to mince words. He recently wrote that the court has become an international disgrace. I’m certainly no expert on world opinion, and I will leave that to others. However, there is no doubt that the court seems oblivious to public opinion. I don’t necessarily think that is a bad thing, because courts should not be influenced by such things. However given the almost universal condemnation you have to wonder why they don’t at least consider that; they have to know this is another opportunity for the media to come down on them.

The answer to my question in the title of this post is probably yes. I’m sure there will be other decisions that will be equally as bad in the eyes of the public. The question will be whether that translates into a change come election time. I tend to doubt it, because most people do not have a clue as to who the judges on the court are, and what they do. I have been practicing law for over 25 years, and I couldn’t tell you the names of more than a couple of judges on the Supreme Court of Texas. I simply do not practice there, and do not keep up with civil law. If a lawyer doesn’t know who the judges are, how can the general public..

Maybe this is what we need to to reform the judicial system. While appointing judges has its problems, you generally cannot argue with the fact that most judges who are appointed are qualified. You may not agree with their decisions or their philosophy, but generally you cannot disagree with their qualifications. The same cannot be said for elected judges. History has shown that sometimes all you need is a popular name to win an election. If you call most lawyers, probably most of the judges elected to statewide offices are not the most qualified candidates in the field. The time has come to change that, and maybe this is the chance we need.

Why the interest now?

walterreaves@att.net (Walter Reaves) — Thu, 10 Sep 2009 07:58:59 -0600

I hate to question a good thing - the saying "don't look a gift horse in the mouth" comes to mind. But Over the last week I have been amazed at the coverage being given to Cameron Todd Willingham. You can't skim the blogs or the newspapers without seeing some discussion of the case. (For a great collection of the coverage see Grit's recent post) I'm glad people are looking at this issue - I only wonder why it wasn't done earlier.

Todd Willingham's story of an innocent man being executed based on junk science is not new. Steve Mills and Maurice Posely were the first to cover the case. The two veteran Chicago Tribune reporters were the first to cover the case - in 2004. Their story concluded that Willingham was probably executed for an accidental fire. The story got some coverage in the national media, but nothing close to what the current coverage is. The New York based innocence project was also aware of the case; they seized upon the similarities between Willingham's case and that of Ernest Willis. Although the cases were almost identical, the result was not. Willis was freed - with the help of the prosecutor - while Willingham was executed. The Innocence Project solicited the leading arson experts in the world to review the case. They released their report in 2006; their conclusion - the fire was not intentionally set, and the testimony used to obtain the conviction was nothing more than a collection of myths and "old wives tales." This report received a little more traction, largely because of the connections of the Innocence Project. However, it quickly died out.

One thing the report did accomplish though was that it pushed the State of Texas into action. The Forensic Commission was created, and the first subject studied was the Willingham and Willis cases. Even though they had a report from a panel of leading experts, the commission went out and hired their own expert. Not surprisingly (or perhaps surprisingly for some) the state's expert came back with the same conclusion reached by the panel - the fire was nothing more than an accident. At the same time - not by design because I know the reporter had been working on this for several months - the New Yorker article came out. The combination of the two led to the almost daily discussion now about this case, and what happens next.

My question is why wasn't this a story back in 2004, or at least 2006? You cannot estimate what impact an earlier discussion would have had on views about the death penalty, as well as arson investigations. So while we are debating what happens next, maybe we should also be considering why we weren't talking about this earlier.

Will fingerprints become obsolete

walterreaves@att.net (Walter Reaves) — Wed, 09 Sep 2009 13:45:41 -0600

The Judiciary committee held a hearing today on forensics in the criminal justice system. The focus was mainly on what to with the recommendations made by the National Academy of Sciences in their recent report.

One of the witnesses was the city of Houston's chief of police. In answering a question he suggested moving toward an increased use of DNA evidence. Specifically, he noted how much more reliable DNA evidence would be than fingerprints in prosecuting property crimes. He has a point - the question is whether state's will ever devote the resources necessary to processing all crimes for DNA evidence. As it stands now, "touch" DNA is almost never processed or utilized; the use of DNA is limited to serious crimes, which generally means rapes and murders. There's a backlog now - just imagine what it would be if you started routinely collecting DNA evidence.

I've written before about the increasing acceptance of the fact that fingerprints are not as reliable as people have been led to believe. There is no doubt that fingerprint identification is extremely reliable when you are comparing complete prints. The problem is with the type of prints usually left at crime scenes. If DNA was used more often we might find out just how unreliable (or reliable) they really are.

I'm sure its a long way off, but I think the police chief may be on to something; some day

there may no longer be a need to rely on fingerpints.

I told you so!

walterreaves@att.net (Walter Reaves) — Wed, 26 Aug 2009 06:19:47 -0600

So far I haven't added my comments to the discussion of the execution of Cameron Todd Willingham. Since I was personally involved, I've struggled with whether I should comment. I have never commented on clients on their cases. Their are a number of reasons for that, one of the big ones being privacy. Their lives have become more public than they ever wanted, and I don't want to add to that. I'm going to make an exception though for someone I still consider a client even though he is no longer with us. I've had to carry this around for over 5 years, and this forum is as good as any to talk about it; I also need to get it off my chest.

By now, everyone knows the story. The Chicago Tribune was the first to report the conclusions of the expert the Texas Forensic Commission hired to review the case of Cameron Todd Willingham. He reached the same conclusion as all the other experts who have reviewed the case in the last few years - there was no arson. That would good news except for the fact that the State has already executed Mr. Willingam for killing his children - having done so in February 2004.

Most criminal defense lawyers - at least those who care - have cases that haunt them. I have my share, and this one is at the top. I represented Todd after he had been convicted, and after his direct appeals had been denied. I knew from the start that there were problems with the case, and came to believe his adamant protestations of innoence. Like others, I initially had no reason to doubt the fire was intentionally set, and looked at other possible suspects - of which there was no shortage.

Shortly before Todd's execution date I had the good fortune to come in contact with Dr. Gerald Hurst. Dr. Hurst is a scientist, who is also an expert in fire science. He had worked on several other cases, and successfully convinced authorities that a fire was not intentionally set - i.e., not arson. Dr. Hurst agreed to review Todd's case, and I sent him all the material. It didn't take him long to tell me it was all BS (to put it politely). He started working on an affidavit, which he prepared. After reviewing the affidavit I did not see how anyone could have a doubt that this was not an arson. But then, this is the court system - in Texas, no less.

I promptly filed a successive writ. I knew those were rarely successful, but I naively believed we had a shot. At a minimum I thought we would get a hearing. I didn't expect any relief from the trial court, and didn't get any. I thought the Court of Criminal Appeals would step in, and at least order a hearing so Dr. Hurst could present his findings, and the state could question him. Why I ever thought the Court would take pause at the execution of someone who was actually innocent I'll never know. I'm not sure how much they read, but for their sake I hope it wasn't much. I don't see how anyone could live with the knowledge that they let someone be executed when there was a serious question about their innocence. I recognize Courts wrap themselves in procedural rules, and probably looked at this as nothing more than a last minute attempt to avoid execution. After all, as Justice Scalia recently stated, Courts can't be concerned with actual; they simply have to determine if a trial was fair.

Ever the optimist I continued to have faith in the Federal Courts. I knew they took death penalty cases seriously, and had hope they would see the serious questions that had been raised. Those hopes were dashed quickly; the procedural Gods won out once again. The case had already been through the courts, and they didn't see any reason why it shouldn't got through again.

I still had some hope - I know, my wife has always wondered about my seemingly naive sense of optimism. There was still the governor, and the Parole Board. All I wanted was 30 days so we could try to get back in court. I don't know what the parole board actually saw - there was never a hearing, nor did they all get together to discuss it. Instead, they all submitted their no votes, and i was notified of those votes by fax. That left the governor; i didn't have much hope, but I still had a little. Shortly before 6:00 p.m. (the time scheduled for execution) I got the call. It was one of the most upsetting conversations I have ever had. It's probably a good thing it wasn't in person, because I would probably now have a criminal record. The call came from a young man, who I am guessing probably hadn't been out of school too long; he probably was even a lawyer. I got the impression the job of notification fell to him, and it was something he needed to get out of the way before he could go out and have drinks with his friends. What he told me has been seered into my brain - and it is probably I will never get out. What he said was that the Governor had looked at the case, and he didn't any reason to delay the execution. Really!!!!! You have a nationally recognized expert telling you its not arson and that's not pause for concern?

I promised that I wasn't going to give up on his case, and I haven't. Thanks to the Innocence Project, and several reporters, the story will not go away. Barry Sheck and the project saw the problem with the case; what made it worse that another defendant, Ernest Willis had been released on almost identical evidence, and with the same expert. The only difference was the prosecutor. They submitted the two case to a panel of experts, who issued a report that has led the way in pointing out the myths that have been associated with arson cases. Two reporters from the Chicago Tribune also took the case, and published a terrific piece of investigative journalism. Through those efforts, the Court realized they had do something, and appointed the Forensic Commission. That commission took on the Willingham and Willis cases, and retained an expert to review them, which is where the current report came from.

So far every expert that has reviewed the evidence has concluded there was no evidence of arson. So Governor Perry, there was a reason to delay the execution. The rush to carry out the execution, and make sure "justice was served" resulted in the most serious miscarriage of justice imaginable - the execution of an innocent person.

I sincerely believe that we all have will have to eventually answer for actions. I don't know this for a fact, but I'm guessing that you won't be able to get away with the excuse that you were just following the law, or it was someone else's decision. The buck has to stop somewhere, and I believe it is with each person who has a chance to make a difference. In death cases, the consequences of being wrong are irreversible. You can't come back and say I'm sorry - just ask Todd's family. If there is any question of innocence, is it too much to check it out?

If there is one thing I wish judges and prosecutors could get out of this case is that it could have just as easily been you. I'm reasonably sure that no one wants to go through life (not to mention eternity) knowing that they participated in the execution of an innocent person. Most people think that would never happen to them; they tell themselves they would recognize the situation. History if full examples of situations that we look back on and believe we would have done something. We don't like to believe we would have sat on the sidelines while Hitler exterminated jews, or people sold human beings into slavery. The fact is, the majority of people did just that. It's not something new. I don't think it was a coincidence that Catholic Church's reading for the day the story came out, was from Matthew. Chapter 23, where Jesus calls the scribes and Pharisees hypocrites for saying if they had lived in the time of the prophets they would not have shed their blood. In fact, they ended up doing that very thing. They couldn't see Jesus right in front of them.

The lesson from this should be that the next person who comes before you and says they are innocent might actually be. Is it too much to accept the possibility that it might be true?

In my career, I've seen people convicted who I had no doubt were innocent. One I was able to see walk out of prison out; it took 16 years to prove I was right, but he eventually gained his freedom. The other I can only look his picture and the card his family sent me after his execution. I don't have all the answers - I'll leave that to people far smarter than me. If you think this is an isolated incident though, you are as deluded as I was in thinking I would get a hearing in Todd's case. We need to do something - and that something needs to more than an apology after the fact. Of course, so far his family hasn't received even that.

Should experts decide who's guilty?

walterreaves@att.net (Walter Reaves) — Tue, 18 Aug 2009 14:16:44 -0600

I've been at the Annual Conference on Actual Innocence at Plano - I lost count of how many I've been to. Generally, the focus of the conference is the same each year; we have a problem, and need to address it. So far, it doesn't look like we've come up with a good solution.

One of the biggest problems I see is the use of experts to obtain convictions. I'm not saying experts shouldn't be used in criminal cases; however, there use should be limited to corroborating other evidence. All too often prosecutors use experts to establish thier case.

There was a presentation on a bite mark case, where the defendant ended up spending 10 years in jail before DNA was able to exonerate him. As with many of these cases, the bite mark was the only evidence the State had that tied to defendant to the case. The situation was a familiar one; the so called expert went out of his way to identify the defendant, ignoring contrary evidence, and manipulating evidence where necessary.

There is no doubt that bite mark comparisons are essentially subjective. As a result, different people can look at the same evidence, and reach different conclusions. Too often it comes down to which expert makes a better presentation. In other words, a defendant's fate hinges on who is the better communicator. The possibilites for disaster are enormous, and all too often realized.

Assuming such evidence is admissible - which I am not ready to concede - it should not be used as the only evidence of guilt. Soo called experts are wrong far too often to leave such important decisions to them. They get to leave at the end of the day and go home, while the defendant's life may be destroyed.

Maybe we need a corroboration rule, like we have for accomplice witnesses. Or maybe it's something that can be addressed through instructions. Whatever the approach, something needs to be done. Until we do, innocent people are going to continue to be convicted.

More doubts about fingerprints

walterreaves@att.net (Walter Reaves) — Mon, 10 Aug 2009 10:24:53 -0600

I'm a little late on getting to this, but another study came out recently questioning the reliability of fingerprints. This one suggests the subjective expectations of examiners play a big role. What's particularly disturbing is that when examiners re-examined prints and were presented with new information about the case they routinely changed their opinions. In other words, the likelihood of a match may depend on the information the examiner has about the case!

I wrote previously about the National Academy of Sciences report on the reliability of fingerprints. That report criticized the lack of research; despite expert's claims about the uniqueness of fingerprints there is no scientific basis for those opinions.

This article raises two disturbing issues. Obviously, one is the effect of bias; they are likely to find what they expect to find. That raises a more fundamental issue though; if the results can be so easily changed, how reliable are. In other words, is it really nothing more than guesswork?

More research is needed. In the meantime, we need to hold their feet to the fire, and force fingerprint examiners to back up their testimony.

Do you have to like your client?

walterreaves@att.net (Walter Reaves) — Sun, 09 Aug 2009 10:05:08 -0600

It's not news that the economic downturn has hit lawyers. Big firms are laying off people, and new lawyers are having trouble finding jobs. A lot of those people are gravitating to criminal lawyer. There are also those there to profit, so there are plenty of people ready to assist those lawyers find clients. Scott Greenfield has been critical of those, and has not been hesitant to provide advice for those who want to become criminal defense lawyers. His posts should be read by all those who think this is the ticket to easy money.

What does it take to be good criminal defense lawyer? Obviously it's more than a desire to make money. As others have pointed out, the fact is most criminal defense lawyers never get rich. I think you can identify a good criminal defense lawyer by identifying why they decided to practice criminal law. They didn't do it by default because nothing else was available - well, okay maybe some did. Most do it because they truly believe in our criminal justice system. They believe the Bill of Rights means something, and they don't like to see people getting screwed over by the government.

That doesn't mean you always have to like your clients. Just because you represent criminal defendants doesn't mean you are advocating murder, robbery and sexual abuse. You do have to know your client, and try to understand why they did what they did. Many are good people who are caught up in bad situations. Some are just bad people, who choose to prey on others, and There may be nothing to like about them; however, that doesn't deter a good criminal defense lawyer.

In the end, we don't defend clients because we like them. We defend them because there is something more at stake. We are truly the champions of the underdog. No matter who they are, or what they have done, they deserve to be treated fairly and with respect. Often it's those who have done the worst things that need us the most; those are the ones who everyone else is against. Their family and society may have abandoned them; we are the only ones who can stand up for them. If you don't believe in that, then you should be chasing ambulances, or doing something else.

Don't get me wrong - we want to earn a living and support our families. It's about more than the money though. if all you are after is the money, you don't really care what happens to the client. Good lawyers do care though; and they care just as much about someone who pays them $1,000 or $100,000. I'm still working on case on a client who that was executed several years because I want the State to acknowledge what they did.

If you looking to hire a lawyer, don't look for someone who simply tells you what you want to hear, and run away from the lawyer who seems more interested in the fee than the facts - they probably are. Find a lawyer who cares about the justice system - you'll benefit from their passion.

The trouble with certainty

walterreaves@att.net (Walter Reaves) — Sun, 09 Aug 2009 09:18:29 -0600

By now many have probably have heard about the Mineola Swingers club prosecutions. Michael Hall at Texas Monthly recently helped educate us on the prosecution in his story Sex, Lies and Videotapes. The story was nothing short of bizarre - a swingers club in the litte town of Mineola, Texas, which included sex shows by young children. The fact that the story was so bizarre should generally set off alarms, and cause police to use extra care in investigating the charges. Too often it has the exact opposite effect; bizarre means newsworthy, which means publicity. To some officers, such a story is the ticket to a career advancement. They start off thinking how they are going to be the hero, who brings these despciable criminals to justice.

Generally, when big mistakes are made you can trace them back the very beginning. Without completing an investigation the police decide a person is guilty. Instead of looking at evidence to see if it fits their theory, they try to make it fit. If it doesn't fit, they ignore it, and assume it must not be truthful. In many of the recent exonerrations, officers had evidence pointing to the person who actually committed the crime. They chose to ignore it, because they were convinced they had the right person.

In the swinger club we now find out that Texas Ranger Phillip Kelm conducted several interviews of the children which contradict their later statements. Fortunately he was caught by a diligent lawyer, who somehow got ahold of his handwitten notes. Afer denying he interviewed the children on certain dates he was confronted with his notes,and had to admit he did. Of course he claimed to have no recollection of those interviews. That's probably true; he blocked it out because it didn't help his case. The case appears to be unraveling as more details of the investigation come out; unfortunately it is too late for those already convicted.

This case provides several lessons - none of which will be probably be learned. Unfortunately, there are always those who put their careers at the forefrong. I'm the first to admit that goes back ways, but there is more danger when it is someone involved with prosecution. While they have to investigate, and develop suspects, they also have to be willing to start over when the evidence doesn't support their theory.

The othe lesson is the need for full disclosure and discovery. I don't know how the lawyer got the notes; normally that is not something that would be disclosed in normal discovery. Unless that material is provided, the prosecution gets to mold the facts. Many times - especially in high profile cases - it eventually comes out. Why not get it out before someone's life is destroyed?

Maybe another lesson - and perhaps the most important is for those who look at a case as a way to make their career. Unless you do your job the right way, you may be ending that career you want so badly.