Monday, November 30, 2009

Jury Trials This Week

Here are the jury trials set in the Travis County criminal district courts this week. Remember, the trial jury gets picked today (Monday) and opening statements usually get going at 9am on Tuesday.







And it's all done in a week...

I used to practice civil law where the trial prep took months and was astonishingly laborious and in almost every case, frankly, unnecessary. At the D.A.'s office, and in criminal law generally, we have less time (150 cases each will do that to you) to get ready and, well, no one is paying us $500 an hour.

If someone wants to, they can, of course. I'm not proud. Or wealthy.

But in the meantime, I'll do it the way I usually do it. How is that? you ask. Thanks for asking. Here's the usual progression, the steps necessary for getting ready for trial:

Subpoena lay witnesses - this is a pretty simple process as we have forms ready to go, though I do have to insert the witness's name and address and make sure the trial date is correct. Then it goes to my secretary who files it with the clerk, and then to my investigator who serves it on the witness. I try to do this a few weeks in advance, when I already know that my witness will be available.

Subpoena police witnesses - super easy, as we have a great APD liaison to whom we give the subpoenas for service. We're supposed to give them at least ten days notice, which I try to abide by.

Give notice to the defense - there are a couple of notices we always end up providing to the defense. The first is a list of the witnesses we intend to call at trial, both fact witnesses and experts. The second is a "bad acts" notice. Essentially, it's a listed compilation of the defendant's prior criminal history, whether convictions or not, and other mean things he has done. We provide this in case we want to use those issues either in trial or, more usually, during the punishment phase. If we don't give notice, we can't use them. Simple rule.

Meet with witnesses - at some point we have to winnow down our list of potential witnesses to those we intend to call at trial. Most of those we will meet with in person, particularly the victim (several times probably) and the key fact witnesses. Some witnesses, for example cops or the fingerprint people, we can talk to over the phone because a pre-existing relationship or their experience on the witness stand gives us a comfort level such that we don't need to meet them face-to-face.

Prepare exhibits - this can include putting exhibit stickers on photos (after choosing which photos we plan to use) to carefully editing videos. We edit videos for several reasons, and for those law-skeptics among you, not for the reasons you are thinking! In fact, the most common reason is to cut out statements the defendant has made implicating himself in other crimes, or mentioning his criminal history.
It's surprisingly common for a newly-arrested suspect to make reference to his own criminal history. For example in a DWI arrest the defendant might say, "Please don't arrest me, I already have five DWIs and this time I'll go to prison," or "You're just arresting me because I'm on parole for burglary." We edit those out because any defense lawyer is going to object to their coming into evidence as likely to prejudice a jury, and a good judge would uphold that objection.

Prepare direct examinations - this process is helpful for playing out the trial in my mind. I envision the witness on the stand and go through his or her story from start to finish. I also make sure I have questions to ensure the elements of my indictment are proven.

Prepare my voir dire - I will try and talk to the jury about issues relevant to my case, which takes some thinking about. Do I need to address the CSI effect? Do I need to talk to the jury about a case containing witnesses of questionable background (usually, yes)?

(And I promise, it's not all done in a week.)

Friday, November 27, 2009

Jurors and note-taking - yea or nay?

I would love to get some feedback on this issue, as it's one that we face every time we have a jury trial:

Should jurors be allowed to take notes?

I'll lay out a few thoughts and let me know what you think in return -- my first poll is --->

Yes to note-taking:
  • do we really expect jurors to remember everything witnesses say? A whole week of testimony and they just have to sit there and memorize it?
  • what a great way for a juror to summarize or note the most important details from each witness
  • writing something down helps you remember it. Which is a good thing.
No to note-taking:
  • don't we want jurors looking at and evaluating witnesses, listening to them rather than scribbling down every word?
  • what happens when two jurors write down opposite "facts"? Hung jury?
  • instead of deliberation, does the jury room discussion become a test of who took the best notes? If so, we end up with 12 people relying on one person's transcription of testimony, rather than 12 people's independent memory and evaluation of that testimony
  • it may not be obvious at the time what the most salient points are, so why waste time writing down irrelevant stuff?
Here's one view in favor, from a criminal court judge. And the American Bar Association seems to agree:

"During the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations.

(a) The notes should be used by the juror solely for the juror's purposes during the jury deliberations, and should be made available to other jurors solely at the discretion of the juror taking the notes. No person, other than the juror taking the notes, should have the right to view the notes.

(b) The jurors should be informed at the beginning of the trial that, at the close of the deliberations, all jurors' notes will be collected by the court and destroyed."

Our Judge tends to allow it in trials that are longer or more complicated, but not in the shorter and less complex ones. The murder trial we recently completed, for example, was only three days long but we had over 20 witnesses, and the judge allowed jurors to take notes. Shame I forgot to ask them if it helped!

It does seem the move is towards note-taking - are there any really good reasons against it?

Thursday, November 26, 2009

Thriller Thursday

First, to all who have stepped away from the turkey to check in here, HAPPY THANKSGIVING! Yes, even though I'm from across the pond, I can appreciate a fine tradition such as this.

Second, and just to be ornery, I'm breaking from tradition with both of my book recs...


I'm going with MINE ALL MINE by Adam Davies. I bought this book while I was experimenting with writing a more light-hearted style myself, and this is a fantastic example of that. Still a crime novel, it's probably more of a crime "caper." So, not a thriller as such but I highly recommend it. Here's the plot synopsis, from Publisher's Weekly:

"a hilarious caper narrated by down-on-his-luck good guy Otto Starks. Having worked his entire life to become a top-notch pulse (highly specialized security guard), Otto falls from grace when several of the works of art under his watch are stolen by the Rat Burglar."

See, a caper. Dashed good one, too.


The break with tradition in this category is that I've not read this book (yet): THE DEVIL IN THE WHITE CITY by Erik Larson. However, I've had three people, totally independently, recommend it to me. People whose taste I trust, no less. So it's on my list, and maybe it should be on yours.

Larson tells the stories of two men: Daniel H. Burnham, the architect responsible for the 1893 Chicago World's Fair's construction, and H.H. Holmes, a serial killer masquerading as a charming doctor in the city. Publisher's Weekly said: "This book is everything popular history should be, meticulously recreating a rich, pre-automobile America on the cusp of modernity, in which the sale of "articulated" corpses was a semi-respectable trade and serial killers could go well-nigh unnoticed." Can't wait, me.

Wednesday, November 25, 2009

What makes a good defense lawyer?

Following up on last week's post, What makes a good prosecutor?, here's my take on what makes a good defense lawyer. These are in no particular order, I have written them as they occur to me. And not being one, chances are I will miss something so feel free to comment on where I've gone wrong.

1. Never tell a prosecutor he's missed something or is wrong (just kidding, see above).

2. Maintain credibility and reputation. A huge part of a defense lawyer's job is talking to and negotiating with ADAs and the judge. As anyone knows, a reputation takes time to build but can be destroyed in a moment and without a good reputation, without credibility, any representation a defense lawyer makes to an ADA or a judge is worth much less. The best defense lawyers will not misrepresent the facts or try to pull the wool over our eyes. They know that any benefit gained in the immediate present, for that particular client, will be undone by many months of distrust. The flip side is that when a lawyer I trust tells me something, I believe him or her. If Kent Anschutz or Jamie Spencer tell me that their client was the passenger not the driver, I know that are probably right and that when I look at the police tape I should look for precisely that. It makes my work easier and is better for all their clients, now and down the line.

3. Know the facts. It's frustrating to have a defense lawyer approach me in court about his case when I have probably thirty to juggle that day, and ask me about about a minute detail buried in the offense report. I will take the time to read the report when I need to, of course, but if you are one of the many lawyers I trust, and you can tell me the facts, it works so much more smoothly and quickly.

4. Know the law. Just this week, a defense lawyer incorrectly advised his client about the minimum sentence he was facing. The judge caught the mistake and carefully, delicately, made it all right before any harm was done. But prosecutors, defense lawyers, and their clients need to be on the same page, we need to know what the facts are and how the law applies. If a client thinks he's facing 25 years minimum when really it's 5 years, justice isn't getting done.

5. Client control. This is where good defense lawyers really garner my respect. You see, in my experience they often face an almost impossible task of explaining the law to their clients, and explaining the legal position that person is in. One reason it can be so hard is that their clients already think they know they law. A good example is someone being held in the county jail pending trial, or a plea deal, who talks to his fellow inmates, the jailhouse lawyers who tell him with great authority which statute applies and what remedies he is entitled to. If you add to that a lawyer, paid for by the state, who comes in and tells the inmate something he doesn't want to hear: "No, you don't get a dismissal because the cop lost the video." Or, "No, you don't get let out today because the gun you used was fake." Every day, defense lawyers endure mistrust, skepticism, and in many cases outright verbal abuse. So to command respect from and the attention of their clients, and to earn the trust of their clients, is a great skill and one that is not easily mastered.

6. Patience. Time and again, I see the good defense lawyers waiting--for the judge, for a prosecutor, for their clients. Those that don't let their frustration bubble over remain in the best frame of mind to get the job done. And believe me, prosecutors see who is politely and patiently waiting their turn, and we appreciate it.

7. Presentations skills. This is obvious, perhaps, and is the same for defense lawyers and prosecutors. If you have a coherent message and can get it across to a judge or a jury, then you will be a more effective lawyer.

8. Maintain perspective. Most lawyers know when their clients are guilty of the crime charged, and will work hard to represent them in order to get the best deal possible. There are some, however, who will believe every word their client (and his or her family) says, regardless of the videotaped evidence, the confession, and the litany of witnesses who say otherwise. I suppose it relates to maintaining credibility, but if you refuse to accept a cold hard fact, and instead tell an ADA or the judge (or heaven forbid a jury) the complete opposite based only on the say-so of your client, then you are not being effective. A healthy mistrust of the State is, undoubtedly, healthy for a defense lawyer, but blind acceptance or willful ignorance of the facts is unhealthy for a positive resolution of the case.

Let me close by saying that my respect for criminal defense lawyers grows by the day. They have an incredibly hard job and the vast majority do it with good humor, diligence, and a real desire to do the best thing for their clients. They work hard for very little pay in many instances, and face all the perils of the self-employed worker. Bless 'em all, I say.

Okay, as to my list, what did I miss?

Tuesday, November 24, 2009

The CSI effect

This is something we address during voir dire, when we are picking a jury and wanting to make sure they give both sides a fair shake.

In the DA's office it's known as "the CSI effect."

Not that we don't love TV, of course, we're addicted as the rest of the world. But some shows do cause us concern. The CSI series being one of them.

Here's what happens: intelligent, educated jurors watch numerous cop shows in which a murder, or some other major crime, is committed, solved, and tried in the space of an hour. For that to happen, certain liberties must be taken. The primary liberty is with the investigative technique most open to manipulation: forensics.

I mean, think about it. Detective Smartypants walks up to the chief suspect and drawls, "Listen pal, we know you did it. You had a motive and we ain't got no evidence."
The suspect replies: "Yep, you got me. I did it, and here's how."

Now, that might have flown in the old days when criminals were more honest, but not any more. Nowadays, on TV and in real life, law enforcement has to come up with some evidence. And we both use the wonders of modern science to do it.

But on the CSI shows, here's what happens: A car is tested for DNA. Yes, the whole thing. Or a bathtub (full) is dusted for fingerprints. Facial recognition software scans a metro station video and comes up the guilty perp. Then, to make sure, four days after the shooting the crime scene guru swabs the bad guy's hands for gun shot residue. Machines in the high-tech police station whirr and go "bleep" as NASA-style panels of lights flicker and flash. The good guys gather around the space-age printer with baited breath until the machine chugs out a clear picture of the bad guy. It's really quite beautiful.

And very unreal.

The average juror, of course, can't know quite how unreal. They know you can't get fingerprints from water, of course. But they don't know that it takes months for a DNA analysis. And their expectations are high high high.

I was asked, after a DWI case, why APD hadn't taken fingerprints from the steering wheel to prove who was the driver. After all, the juror was correct that one element of that crime was proving that the defendant (as opposed to someone else) was actually driving. Thing is, who was behind the wheel when the cop pulled him over? Who can you see on the police video climbing out of the driver's side of the car?

In my arson case, which I keep promising to blog about, one of the jurors asked why we didn't have fingerprints from the crime scene. In fact, the defense lawyer made a deal of that issue in closing argument. Fingerprints. From a house that was torched, burned to a crisp. Really?

We do the best we can, so do the cops and scientists. We try to provide every piece of scientific evidence possible, where necessary anyway. But we do like to make sure that everyone's expectations are realistic and that the only burden imposed on us by law, to prove our case beyond a reasonable doubt, is the burden we are held to. And if the forensics help us exceed that burden, so much the better.

PS: In Fort Worth, this new exhibit lets you see how it's done. Looks interesting, I'd love to know how real it is, but kudos to them for expanding the learning experience in this realm.

Monday, November 23, 2009

State v. Fred Ridings

I'll post a link to the story when it comes out, but an update: Judge Mike Lynch just sentenced Fred Ridings to 32 years in prison for the murder of Ronnie Whited.
The jury returned a verdict of guilty last week and the sentencing hearing concluded around 4:30 PM this afternoon in the 167th District Court.

Update: here's a link to the story.

Monday round-up

A crazy week ahead, three days in the office to finish getting ready for another trial, this case. And Thanksgiving at the end of the week, but I'll be posting every day, fear not.

So what happened over the weekend, out of our jurisdiction?

First, police in California need your help. If this gun-toting robber is your grandpa, please let them know.

Remember last week's round-up, with the guy who was claiming disability while winning gold tournaments? No, not him again, but maybe a friend. She claimed insurance payments for depression, until her insurance company spotted Facebook piccies of her at strip clubs and grinning on the beach.

The note used to demand money from a bank teller is great evidence. Was great evidence. The suspect munched it when he was caught, and the munching was caught on camera.

A cold-blooded smuggler. I wonder if the giveaway was a sudden rush of cockney accents coming out of his shirt offering cheap car insurance?

Saturday, November 21, 2009

A rare Saturday post

But I wanted to note a good result in the 167th today. We had a long chat with our jurors after the verdict and was hugely impressed with their diligence and hard work, and I plan to post about that in the near future (dare one hope for a Sunday post?!). But for now, just the facts: a conviction. Sentence to follow Monday, when we conclude the punishment hearing. Congrats to my first chair, who rocked, and thanks again to those jurors, the cops and detectives who made this happen (you know who you are!).

Also, a good result for my friend and colleague Joe Frederick.

And finally from the case tried by Jackie Wood and Allison Benesch this past week.

Friday, November 20, 2009

And now, we wait

This is the hardest bit about trial. The calm after the storm. The moments that stretch into minutes, which drag themselves into hours.

The jury got the case at 10:30 AM yesterday, and immediately asked for some exhibits: video of the defendant in the police car after his arrest, photos of the vehicle he was in when caught.

And we, the lawyers, have nothing to do but wait, so we look at these requests like the soothsayers of old looked at tea leaves and bird poop, wondering if they mean anything. Which of course they do: the jury wants to see these items of evidence.

We hang around the courtroom for thirty minutes, talking to the detectives, the family, the defense lawyer, delaying the moment that we have to return to our offices to begin waiting there. We have work to distract us, but who can concentrate fully when a jury is deliberating their case? I can but try, I suppose.

Inevitably, in the vacuum between closing arguments and the verdict we wonder what we could have done better. I can't control what the witnesses said, so I don't worry about that. No, I wonder if we should have put on different witnesses (though in this case, the answer is an easy "no") and I wonder if and how my argument to the jury could have been stronger, better, more persuasive.

But in reality, what's done is done. When I got to the office this morning, I purposely delayed making my daily cup of coffee until after we came back from closing arguments so that I'd have something to look forward to, to enjoy. A measly cup of coffee.

And while it was brewing I reminded myself that it's not about me, that I'm not the only one bearing the weight of this wait. The family of the victim, the defendant and his family, of course, and the cops who put the case together. What we'd all give to be a fly on the wall in that jury room.

But instead we wait. And drink coffee.

Then, as I sip from my cup, I remember that I have to do this all over again in ten days, another jury trial on a serious violent offense.

And that makes me smile.

Thursday, November 19, 2009

Thriller Thursday

Two books recommendations, though for obvious reasons I've not done as much reading this week as I would have liked.


I am reading this one right now. I like his work because he sets his thrillers in multiple locations around the world, this one so far has me in Italy. His last went from the Caribbean to Israel to Switzerland. Me likey travel when I read, so thumbs up to THE CONFESSOR by Daniel Silva.


Cannibalism is illegal, right? Okay, then this book recommendation is crime-related because there's plenty of cannibalism in THE HEART OF THE SEA, by Nathaniel Philbrick. This is the true story behind Herman Melville's MOBY DICK, wonderfully researched and beautifully written, it is one of the best non-fiction works I've read in years.

Wednesday, November 18, 2009

Bear with me....

I warned you about the possible poor posting, though I do intend to follow up yesterday's What Makes a Good Prosecutor with a look at what makes a good defense lawyer. Next week probably because, as you can see, I'm still in trial.

So just for kicks, how about a picture or two of the judge of my court? Credit to artist and ADA Donna Crosby, of course.

Tuesday, November 17, 2009

What makes a good prosecutor?

As I look around the office, I see what most people in the workplace see: colleagues with a varying arrays of skills, personalities, and approaches. So I got to wondering whether there are things we have in common, or aspire to, when it comes to being a prosecutor.

In other words, what makes a good prosecutor?

First, I suppose you have to define the job. I mean, some prosecutors prepare and present indictments (grand jury division) and some don't get to come to the courthouse because their cases are more specialized (e.g., the insurance fraud division). So let's go with my role: an ADA in the felony trial division. If you missed my post earlier about what we do, generally speaking, have a look here.

So, what makes a good felony trial prosecutor?

1. I don't think you can be good at this job if you forget your purpose. It sounds trite, maybe, but it's very true: our job is to do justice. Not get convictions, not send people to prison, not max out on sentencing whenever we can. Do justice. I know that because the guy who hired me said so, and because it's in the Book:
"It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." Texas Code of Criminal Procedure, Art. 2.01.
So, the first and perhaps most important qualification is adherence to this principle.

2. You have to enjoy being in trial. I have always believed that you can't be really good at something unless you enjoy doing it. So while we all have off days, I think you have to love the theater of a jury trial, you can't be a timid, retiring wall-flower.

3. Relatedly, you have to be able to see the big picture. You have to look at your case, the defendant, and your witnesses and know whether you can achieve what you want to achieve. It's all very well standing on principle and insisting on a trial, but if you can't see your case crumbling before your eyes, then my guess is you are focusing on some small part of it and not seeing the bigger picture.
For example, say you have a DWI case. The police report might make it obvious the defendant was intoxicated and you might insist on going to trial because you believe the police officer. Why would he lie? (And, in my experience, they do have much better things to do than arrest innocent people.) But what if the video tape is missing? What if the cop is a rookie and trembles like a leaf on the stand? What if he trembles with nerves when you meet him in your office?? Is it better to lose or to offer a plea deal? Maybe your end goal was to ensure the defendant gets treatment for alcoholism, and he'll do if for a reduction in the sentence.

4. I think a good prosecutor has to be a good listener as well as a good talker. And by "good" I mean discerning. Listen to the victim, see what will make them whole. Maybe it's not prison for the defendant, maybe it's restitution for whatever was stolen or broken. Listen to the defense lawyer, he or she will usually tell you where your case is weak. You need to know that. Listen to your colleagues. They have experience in making the right punishment "rec." They have tried an insanity case before, so can help.

5. Keep perspective. This is the best job in the world, and it allows us to help people like no other job I've ever had. We're given a badge and a cool title. We are entrusted with a huge amount of discretion (which I will blog about in the near future), and we often get to choose whether someone goes to jail or not. But we're not superheroes, we're not deities, and just as we shouldn't expect others to see us that way, we shouldn't crush ourselves with the weight of our own unrealistic expectations. We can't win every trial, treat every drug addict, restore every victim to his or her former self. As long as we try, do our best, and remember that we're as human as everyone else in the courtroom, we'll be okay.

So, what have I missed?

Monday, November 16, 2009

Jury Trials This Week









Monday round-up

Before I start with my usual round-up of the weekend's off-the-wall but crime-related news, a heads-up that I'll be in trial this week. I may post some about it later (for now I'll just insert a tease with this link) but I will be busy, though not too busy to post something every day this week.

So, on to the weird and wacky news....

We've all heard about the balloon boy, and the surrounding amateur (and maybe a few professional) shrinks deciding why the parents would do such a thing. Well, they aren't the first to want to live a different life. And some even get away with it, at least for a while. Here are some folks who fooled those around them to do what they wanted to do, and be whom they wanted to be.

And in more recent news, someone who didn't get away with it. Disabled? Absolutely... apart from the whole golf champion thing.

And if you can't be one, why not steal one? I'm talking about stealing a policeman, of course. The amazing thing is, I used to be a newspaper reporter in this town. And am not in the least surprised by this story.

Ooops. That's all.

While we're on the police officer thing, ours wear distinctive uniforms. And should never be confused with a waitress from Sonic, especially if you are driving while under the influence.

Here's a tough one: our law enforcement friends in LA were looking for a vandal who had been placing orange and black "Who Is John Scott?" stickers on buses. Well, they solved the case, and guess who dunnit?

And because the Smoking Gun deserves your traffic (and because it's relevant to my work here, and because you should start your Monday with a smile), enjoy these perp 'taches.

Oh, in case you want to start the day on a non-criminal note, but still wish to revel in the embarrassing mistakes of others, here are the 10 worst predictions of the last decade, according to Newsweek. I mean, wasn't it obvious the iPod would flop?!

Friday, November 13, 2009

Not just a jury, a GRAND jury

I suppose it's appropriate that on "Jury Friday" today I will be presenting a murder case to the grand jury.

"The what?" you ask. "What's so grand about it?"

Well, nothing really. But here's a little bit about grand juries.

A grand jury is made up of twelve citizens, much like a trial jury, and they meet several times a week. All that they do is done in secret, but they have one main function:

To review cases and decide whether to "true bill" or "no bill" them. That means indict or not indict.

Basically, an ADA presents information about a case, talks about the defendant, why he or she was arrested, giving the facts based on the police report. This is a one-sided process, the defense doesn't get to say, "Hold on, but what really happened was..." The idea is that these twelve people are saying, "Fine, you have enough to proceed with a formal charge." So they don't decide guilt or innocence, they decide whether there is enough evidence to warrant a trial.

In making their decision, a grand jury has certain powers, the chief one being the power to subpoena witnesses or evidence. So if an ADA presents a serious case and the grand jurors think, "Hmmm, maybe.. but we want to hear from Witness X," or "We need to see medical records," then those can be obtained.

The one-sided nature of the process has led to some criticism. For example, Sol Wachtler, the former Chief Judge of New York State, jokingly observed that a prosecutor could persuade a grand jury to "indict a ham sandwich."

Now that would be an interesting test.

However, I'm not indicting a ham sandwich today. I'd tell you more but then I'd have to... well, break the Vow of Grand Jury Silence.

Thursday, November 12, 2009

Thriller Thursday

So this week I find myself in the middle of a crime novel that has captured my attention. Finally, after weeks of throwing mysteries and thrillers aside in disgust or boredom, I'm finishing one. Thank you Michael.


People have been recommending Michael Connelly's books to me for a while now. But for some reason I've shied away from the most famous authors in the genre, preferring to try new writers or older ones. But they are famous for a reason, and ECHO PARK by Michael Connelly is a great story, well told. His main character is interesting and the bad guy is a stone cold serial killer. Toss in some political machinations, and you have a cracking good read.


This is the book that fueled my interest in murder. In a healthy, positive way, I promise. Written by a prosecutor about one of the most famous killer of the century, Charlie Manson.

It is, of course, HELTER SKELTER by Vincent Bugliosi, and while not being a literary masterpiece it's a classic within the true crime genre for its insight into the court case, as well as the details of the crime itself. Great photos, too.

Wednesday, November 11, 2009

Winning and... gulp... losing

I took my son to a party the other week. One of his friends held it at a bowling alley. My son, not yet five, had never bowled before but was doing a good job. A great job. In fact, I realized after a few minutes that the scoreboard was recording all the kids' scores as they bowled, and my boy was winning.

Ashamed, silently, I willed him to keep knocking down the pins. I smiled insincerely at other dads when their kids didn't do so well. "Hey, good job!" I'd say. And when my son knocked down one or two more than them I'd pat him gently on the back and whisper, "You're awesome. And you're winning."

I knew I was competitive, but this was getting silly.

And so it is in trial. I want to win. I work my cases hard, prepare diligently. I don't obsess, but I work hard. And I want to win. Did I mention that?

But it's not about me. And it's not about the defense lawyer. Sure, it's an adversarial system, and presents itself as one side winning and one side losing. And no one would say that a defendant can't legitimately look at a "Guilty" verdict as a loss. A loss of liberty, in many cases, certainly a hit to their future because they now have a criminal record, or a worse record.

But I think sometimes the lawyers get too wrapped up in the winning and losing mantra, make it too personal.

The reason I say all this is that I won a case recently and all I felt was relief. Relief that I won, that a guilty man (in my and the jury's view) was convicted, and relief that it was over.

But I also felt relief that I didn't lose. And I didn't like that, because if I lose (and I have, and I will again) it should show me that the system is working. Because if I can't convince a jury of my case beyond a reasonable doubt, then they should acquit. Must acquit. As I have said before, my job isn't to get convictions but to see that justice is done, so when I lose I should be glad that justice is being done.

And I am.

I just hate to lose.

Tuesday, November 10, 2009

Some of my cases

Friends often ask me about the cases I'm handling. I have posted before about the overall make-up of my docket, the different types of felonies I prosecute and how many of each (very roughly!).

But I thought I would highlight a few of my cases which have made the news.

First, the two murder cases I have. They are very different, one is a "cold case," a homicide that took place in 1985, and the other is a recent one.

Next, an aggravated robbery case, which will likely go to trial in the New Year. A second story on this one.

Also, this case, which looks like it will be my second arson trial of the year. I didn't post about the first one yet, did I? I should do that. Anyway...

As I have mentioned previously, I handle my court's DWI and DWI-related cases. Which means that this intoxication manslaughter case is mine. As is this case.

The next case that I go to trial on is this murder case. Here is Austin Police Department's press release on the case. I'm second-chair, and we'll pick the jury this coming Monday; trial will last most of next week, I expect. Remember, it's an open courthouse so all comers are welcome.

Monday, November 9, 2009

Weekend Round-up

Don't steal from a nine-year-old girl, or this could happen to you. It's true, the sign says so.

From our friends at, always with the weird lists. In keeping with the nature of this blog, I should inform you that depending on your reasons for doing so, faking your own demise may be a crime.
But in case you're still thinking about it, here are a few clues on how not to do it.

And talking of throwing it all away, ticker tape is one thing but confidential documents being dropped onto winning sports teams? Ooops.

So you thought us Brits were all tea and politeness? Nope: check out Miss England, not the one who stepped down after a pub brawl, the other one: the soldier on combat duty. Mess with her if you dare.

Vanity - it's a sin for a reason. This clever fellow didn't like his mugshot when it appeared in the paper, so he sent in a better one. Now it'll be twice as easy to catch the fool.

Talking of catching fools, how about the car thief who was foiled by a 9-year-old?

And some people are so ridiculous, you don't even need a kid to nab you. Like the woman who went for a drive with with a half bottle of Jose Cuervo tequila by her side, and sliced limes on the console.

Friday, November 6, 2009

What do we know about you?

I thought I'd go back in time, as far as the process of picking a jury, to the day (or two, or three) before trial.

I have mentioned before how jurors are picked, and how they are required to fill out certain information, which they can do online. Name, address, interests, etc. Everyone gets to fill out the same form, and both the prosecution and defense are given copies of the responses in the week before trial.

Given those forms, what do we look for?

As a prosecutor I look for someone who might be obviously biased against me - the girl whose email address started with "420friendly" indicated a chance of bias, for example. Or the person who lists his hobby as "anarchy" might not be inclined to abide by the laws of our fair state.

Likewise, defense lawyers might look at the section asking whether the panelist has relatives in law enforcement.

I also look at the section that says whether they have been a victim or witness in a criminal case. Likewise whether the person has been a defendant. I don't assume bias against the state in the latter case, as you might think. It's been my experience that someone who, for example, pled guilty to an offense, say DWI, believes somewhat in personal responsibility and isn't about to let someone off the hook automatically. This biggest danger with picking a jury is thinking you more about someone than you do, and this is why we try so hard to get panel members to talk during the voir dire process.

One of the last sections on the form, which I'm not sure I see the purpose of for criminal juries, asks whether the panelist or a family member has ever been seriously injured and required treatment. You get the usual car accident or "as a kid I fell of my bike" responses. But sometimes you get answers that make you go "Huh?"

Like a recent panel member, responding to the question about being injured replied:

"Stepped on a fish, injured my foot."

Sounds like the premise for an interesting short story, if you ask me...

Thursday, November 5, 2009

Thriller Thursday

Two completely contrasting books this week...


I'm going back seventy years for this one. You see, lately, I've been putting books down, unable to finish them, bored by the plot, confused by the number of similar characters, or unimpressed by the setting. So I wanted a quick, fun, atmospheric read and got myself Maigret's War of Nerves.

It's by French author Georges Simenon, and is almost a novella rather than a novel. Much shorter than modern mysteries, like a delicious hors d'oeuvre perhaps. Plot summary:

Inspector Maigret, guided by humane feelings behind his stolid facade, puts himself at grave risk to arrange the escape of a condemned man from prison. Judged guilty and awaiting execution for the killing of a rich American woman and her maid, Joseph Heurtin is innocent, as Maigret suspects.

So who did it, and how did they frame Heurtin??


Now for something longer. It's a classic, by one of America's greatest writers. The detail and research in the book are astonishing (and occasionally a little much, frankly) but if you have any interest in true crime and/or the death penalty, it's an amazing story, wonderfully told.

I speak of The Executioner's Song by Norman Mailer, the true story of Gary Gilmore, who in 1977 became the first person executed in the United States since the reinstitution of the death penalty. By firing squad, no less.

Wednesday, November 4, 2009

Chivalry lives!

So a policeman showed up at my son's day care, in uniform, to collect his daughter. My son ran up to him and said:

"Are you a a policeman?"
"Yes," the officer replied.
"Well, my dad's a superhero!" said my wonderful boy.

But if you want a real hero, how about a young man who helps catch a rapist and then gives his reward to the victim?

Guess I'll have to try harder to keep up.

A S.H.O.R.T. story about drugs

So to earn a little extra cash I signed myself up to be the prosecutor for the Travis County SHORT program. No, I know what you're thinking but I'm actually quite tall.

It's about drugs.

Basically, and to quote from the official web page, "[t]he purpose of the program is to address the needs of the substance abuser while they are in the community, utlitizing the programs that are currently in place." Here's the rest of the official stuff.

A laudable goal, right? Turns out to make for very interesting Wednesday evenings for me. Basically about sixty participants, all of whom have pending felony drug cases, show up to court for a kind of progress report.

But it's not like any kind of court I've ever seen. The judge knows the men and women who appear in front of him, he jokes with them sometimes and he's stern when he needs to be. His one and only goal is to get them off whatever their drugs of choice is (and we have a variety: meth, heroin, weed, alcohol, cocaine....) If Judge Bennett needs to use a stick he does, but there's much more of the carrot. And he's surrounded by counselors who know about addiction.

Who are the participants (I don't feel like calling them defendants, it doesn't seem accurate in this setting)? Men and women (more of the former) from pretty much all walks of life. There are some from poorer backgrounds and some who are not. Many come in baggy pants and some come in a shirt and tie. And regular pants.

The most interesting thing seems to be the transition from grouchy, unwilling, addicted participant to forward-looking, grateful, functioning citizen. I've not seen the start-to-finish transition myself -- I've only been there a few months and the fastest "graduation" is a year -- but I know it happens because when someone graduates, Judge Bennett makes them address the full courtroom.

And the message is pretty much always the same: if you fight the program you will lose and remain a using addict. If you trust it, and the counselors, you will be clean. There is pride in the eyes of those who get their T-shirts and graduation certificates. But there is also a great deal of pride in the eyes of Judge Bennett and the program counselors.

As well there should be.

Tuesday, November 3, 2009

Not your usual sketch artist

I have the greatest admiration for all artists, except those of the "con" variety. All I can do is write, so here's an ode to a prosecutor who is a gifted painter and sketch artist. Her name and a link to her site are at the bottom.

She sits in the courtroom, a smile on her face,
She watches proceedings in her own quiet space,
As lawyers and suspects and others pass through
She sits, quietly smiling, watching you.

Her weapon of choice isn't a gun or a knife,
And she's no trouble-maker, no bringer of strife.
No, she's there with her weapon to make permanent note,
To kidnap your look and the cut of your coat.

And if you sit there too long, if you don't move around,
She'll secure your profile with nary a sound,
Without one single word, and leaving no clue
She'll capture your likeness.
(Yes, she's captured mine too.)

Donna Crosby's site. Visit, peruse, enjoy.

Monday, November 2, 2009

Jury Trials This Week