Waco Criminal Law Blog

Is History repeating itself

Walter Reaves — Sun, 20 Dec 2009 09:41:34 -0600

I started following the situation in Arizona out of curiousity more than anything else. I'm sure I'm like most lawyers and couldn't imagine a court bailiff going through my file while my back was turned. I'm pretty sure that where I practice the bailiff would be fired immediately. Not so in Arizona with sheriff Joe Arpaio. Not only did he not fire him, he threatened the judge, and started a criminal investigation. The situation has deteriorated quickly, and appears that it is now a battle between the sheriff and the courts and the lawyers - from where I sit it looks like the sheriff has the upper hand.

It probably took me longer than most, but my curiosity has progressed to concerned. Thanks to Rick Horowitz I started thinking about how serious this could become. The problem is that sheriff Joe is enormously popular. His popularity is the result him seizing on people's fears - in this case its fear of immigrants and fear of crime. He has people convinced he is protecting him; I understand he is thinking about running for Governor, and would probably be the favorite.

It's natural for people to be afraid - everyone is afraid of the unknown, and those who are different from them. We all view people like Hitler in hindsight (and no I'm not comparing sheriff Joe to Hitler - at least yet), with knowledge of the evil he did. We forget how he got to the position of power - he seized on people's fears. He was enormously popular in Germany, and successfully convinced everyone that it was them against everyone else - e.g. jews, catholics, people of color, etc.. The world was aware of him for a long time before he finally forced their hand, and made them react. I'm sure the prevailing view was that's something that doesn't effect me; after all, it's clear across the ocean.

In the United States we have seen the influence of the Klan. Seizing on fear of those who are different they convinced the majority that blacks were different, and could be treated differently. The treatment didn't extend to discrimination, but violence.

What can we learn from history? I think it's that we cannot turn a blind eye simply because evil is not right before us. I have always been amazed about how entertwined the Klan and religion were. For the most part they believed they were acting in accordance with God's will, and the bible was part of their beliefs. I'm sure there were many who attended the lynching on Saturday night, and sat in the pews on Sunday morning - maybe as deacons and preachers. The same thing happened with Germany; most denomimations, including the Catholic Church, have acknowledged they could have done far more than they did.

My question now is where are people of conscience - and the church - in Arizona? My guess is they are voting overwhelming for sheriff Joe. They have let their own fears overshadow their beliefs in convictions. They either don't see - or refuse to recognize - the incongruity. The rest of the United States doesn't get a pass either.

Those who profess to believe too often ignore the passage from Matthew where Jesus says we will be judged by how we treat the least among us. (I doubt Christianity has a monopoly on this - I just don't know enough to quote other beliefs). The least among us includes immigrants, and criminal defendants (yes they are people). If you really want to distill that teaching, just assume it applies to anyone who is different.

I often wonder what I would done if I had been alive when Jesus walked the earth. He was clearly a rebel - he was on the outside attacking authority. And those in authority were so convinced they were right they rejected him. I worry that I would have been right there with the Pharisees.

I also wonder whether I would recognize Jesus if he appeared today. I'm sure he wouldn't fit our perceptions of him; he would probably be homeless, and dirty. In short, he wouldn't look like us. I'm pretty sure if Jesus shows up in Arizona he's going to be arrested and living in a tent.

Some of the lawyers in Arizona have had enough, are calling for a rally tomorrow. They know the repercussions; some have already been called in for questioning and threatened with obstruction. Most recently sheriff Joe has threatened to investigate the State bar. Despite that, some brave lawyers are going to stand up and be counted for what is right. I wish I could be there - I will be there in spirit. Let's hope thier example turns the spotlight on what happens - before its too late.

Are prosecutors acting up more?

Walter Reaves — Wed, 16 Dec 2009 08:05:33 -0600

Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

Are judges ever going to acknowledge the problems with Eyewitness Testimony?

Walter Reaves — Mon, 14 Dec 2009 07:31:44 -0600

Hopefully by now everyone recognizes the problems with eyewitness identifications - the problem being that they are not always reliable. A substantial amount of research has been conducted, and they all reach the same result. Even the National Institute of Justice weighed in several years and acknowledged the problems, and suggested reforms.

Just how unreliable (or reliable) are eyewitness ID's. No one will ever know the true number. We do know that 75% of the DNA exonerations involved eyewitness IDs. Since DNA is available in only a handful of cases, you have to figure the percentages are pretty high. Some have suggested its roughly 50% - or the equivalent of chance.

We do know there are a number of factors that cause eyewitness IDs to be less reliable. Those include the presence of a weapon, and identifying someone of another race. We also know the manner in which the line-up is conducted has a tremendous influence - the ideal is individual pictures, presented by someone who knows nothing about the case. We also know something about how witnesses view their testimony; most are absolutely convinced they are right. The research is clear that certainty does not equate with accuracy.

So what impact has all this knowledge had on the criminal justice - absolutely none. Only a few states have implemented changes in procedure. More importantly, courts appear to have completely ignored this knowledge.

A recent law review article attempted to study the impact the research has had on judicial decisions. They chose cases where the ID was challenged, and there was no (or little corroborating evidence). In all the cases the defendants were convicted, and appealed. The goal was to determine whether the courts were applying the research in deciding these cases. The answer was an overwhelming NO. Not only were the courts not recognizing the problems with eyewitness, they were using factors that have been soundly rejected. In upholding the identifications a number of courts noted the witness was certain about the identification. A total of 96 cases were studied - all decided within the last year. Relief was granted in only two of those - and that was not based on problems with the ID.

So what does that tell you? According to the author of the article it suggests that innocent people are still being convicted on bad IDs. And it looks like that is not going to change anytime soon.

I think we have to recognize that the general public still sees eyewitness testimony as sound. While they are willing to acknowledge people can be mistaken, they are not willing to say the witness in their case is mistaken. We have all seen cases where the evidence presented by a defendant was almost overwhelming, but not enough to overcome the eyewitness. That means you cannot simply leave these cases to juries.So what's the answer?

The final responisibility is with the courts and the legislature. The legislature needs to mandate changes to cut dowon on the possiblity of error. That's not going to be enough to solve the problem though. Judges still have to do their jobs - that means throwing out IDs in bad cases. They can't simply take the easy road, and leave it the jury. Lawyers also have to keep pressing the issue, and challenging IDs.

So let's get out there and do something.

Did the decision in Beard vs. Kindler decide anything?

Walter Reaves — Wed, 09 Dec 2009 07:49:34 -0600

Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

What the heck - Why did the Supreme Court take this case?

Walter Reaves — Tue, 08 Dec 2009 08:24:27 -0600

Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

Does Society (i.e. jurors) assume everyone is bad

Walter Reaves — Mon, 07 Dec 2009 07:58:00 -0600

The regular college football season is now over; for college football fans like me we now have to find something else to do on Saturdays. There is still the bowl season, and the Heisman race. Unlike most years, the Heisman race is wide open. Until he turned in a horrible peformance against Nebraska my guy - Colt McCoy - was in the lead. Now it's anyone's guess.

This past weekend was not only the last regular season game for McCoy, it was also the last regular season game for Florida quarterback Tim Tebow - who won the Heisman two years ago. For those who don't know, many claim Tebow is the best college football history in history.

McCoy, Tebow, and last years winner - Sam Bradford - all have one thing in common; they appear to be extraordinary young men. They volunteer in their communities, go on mission trips, and have a strong faith. You would think that would be a source of praise - and pride. Instead, it has become a source of criticism. More than a few people have questioned whether the appearance is genuine - in other words, some feel it is just an act.. When Colt McCoy kneeled down with his head down (like he was praying) I'm sure many viewed that as less than genuine.

Obviously I don't know any of those three; I assume - and I hope - that the appearances are genuine. I certainly don't have anything to suggest they aren't.

I don't think this something peculiar to college football fans; instead, it's a reflection of society in general. We have come to the point where we assume everyone is bad or evil. If they appear to be good, it is just an act. If that's true, what does it say about our jurors. We already know that most people think criminal defendants are "different" from them. Obviously they did something wrong, or they wouldn't be where they are - right? Do we have a chance of overcoming those presumptions?

What does that does it tell us. To me, it says that attempting to convince jurors our clients are really good people is probably not going to be effective. We certainly need to try, but don't put all your eggs in one basket. Maybe we need to play off those feelings. After all, police officers and prosecutors are just like everyone else; why should jurors assume they are out doing the right thing.

Recognizing trends is something we have to do, and deal with. You can learn something from everything - even college football.

What is scientific testimony?

Walter Reaves — Mon, 30 Nov 2009 18:48:38 -0600

The Star Telegram had an article addressing the debate over the use of forensic testimony in criminal cases. They had the audacity to point out the conclusion of the National Academy of Sciences report that ballistics is not science - it's an opinion. Of course, that drew responses from crime labs, and those who regularly testify on such matters. The point of the article was not to answer the question of whether it's science or not, but point out the issues are currently being debated. In Texas, these type of issues were supposed to be addressed by the Texas forensic Science Commission.

Lawyers are known (despised) for arguing over words - yet we don't challenge the use of the term "science". So what is the definition? Here's one:

The word science comes from the Latin "scientia," meaning knowledge.

How do we define science? According to Webster's New Collegiate Dictionary, the definition of science is "knowledge attained through study or practice," or "knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world."

As far as I'm concerned, a crticical part of science is utilization of the scientific method. What does that mean? While its been a long time since I was in school, it basically means formulating a hypothesis, and then testing to see if its true. Rigorous testing means attempting to disprove the hypothesis. If you can't disprove it, then it's probably scientific.

So how does this apply to fields such as ballistics, fingerprints and blood spatter? I don't think it does. The underlying assumptions for those disciplines has never been established: i.e. there are no studies establishing that no two fingerprints are the same, or guns put the same marks on bullets to the exclusion of all other guns. Ultimately, all those fields are based on one thing - observation.

The problem with observation is that no matter what procedures you follow, the ultimate decision is subjective.That is the problem with those fields; if something is true, everyone that looks at it should reach the same conclusions. If you have two equally qualified experts reaching different conclusions, that's not scientific.

Another problem is determing who is an expert. Is it someone who looks at a lot of fingerprints or ballistics. Does that mean they are able to accurately look at something at make comparisons. Why don't we use artists - who have a discerning eye for detail? Also, if it's nothing more than making comparisons, why do you need an expert?

We need to start addressing this type of testimony for what it is - opinion. What's the answer? I don't know. Perhaps its the use of court experts, or perhaps its in limiting the use of such testimony, or providing limiting instructions. Something needs to be done, because there is no doubt that as long as you have competing opinions one of them is likely to be wrong - and it is justly likely to be the state's expert as the defense expert.

Lawyers need to become more science literate

Walter Reaves — Sun, 22 Nov 2009 10:02:48 -0600

I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

Is there any doubt clemency is political decision ?

Walter Reaves — Sun, 22 Nov 2009 09:45:01 -0600

Several weeks ago Randall Thompson's future was probably looking pretty good. He was scheduled to be executed, but the parole board voted to recommend a commutation to life. In Texas that's a rare thing - I'm sure his lawyers had to look several times to make sure they were reading it right. If you compare it to the lottery, he was told all his numbers matched. All he had to do was collect his money - in this case get the approval of the Governor.

The governor of course is Rick Perry - who just happens to be engaged in a heated primary election. Never thought to be soft on the death penalty, Gov. Perry had commuted sentences before based on the parole board recommendation. Too bad he didn't do it in this case - Mr. Thompson was executed after Gov. Perry refused to follow the recommendation.

I'm sure Gov. Perry has his reasons - just like he continues to insist Todd Willingham is guilty. I think the truth is that he didn't want a commutation to be an campaign ssue. His base of support is to put it mildly "off the chart" on criminal justice issues. They believe in more crimes, and tougher punishments. Heaven forbid you suggest someone shouldn't be executed - even if there are doubts about their guilt.

The bottom line is that if Mr. Thompson's execution had been scheduled a few months earlier he would probably be spending the rest of his life in prison - just like his co-defendant.

This was upsetting enough; then I had to read Mark Bennett's comments, which included a post by Mr. Thompson's habeas attorney. It appears that Mr. Thompson was the victim of an all too often situation - bad lawyering. Any doubt is dispelled by looking at what happened to his co-defendant, who was represented by a good lawyer. In short, the justice system failed him.

I've written before about my belief that we are all going to be accountable for our actions some day. Most of us have a lot of things we aren't proud of - and aren't going to get off the off the hook for. Imagine having to explain why you thought it was better to let someone be executed so you wouldn't damage your re-election chances.

There has to be a better way to handle death penalty cases. Whatever it is, it's not leaving decisions in the hands of those who worried more about their own future - i.e. politicians. They are always going to be decisions with political ramifications. Any doubt - look at the the heat coming down on Mike Huckabee for reducing the sentence of Randall Clemmons (who recently gunned down four police officers). When a decision like that goes bad, it's easy pickings for your opponents.

Politics should not enter into decisions on clemency and communation. In fact, the political ramifiactions of a decision have nothing to do with the meritts. Unfortunately, as long as politicians are the ones making those decisions, it will remain.

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

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?

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?

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?

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?

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

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?

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

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?

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!

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?

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.